Arizona Supreme Court Hears Oral Arguments on Territorial-Era Abortion Ban

UPDATE: On April 9, 2024, the Arizona Supreme Court declared the 1864 near-total ban on abortion enforceable, but stayed its decision while the lower court considers additional arguments about the law’s constitutionality. 

The Arizona Supreme Court hears oral arguments today in a case brought by the state’s attorney general seeking to reinstate the state’s 1864 near-total ban on abortion.

Under the law, “a person” who provides an abortion could face up to five years in prison. The law contains an exception to save the pregnant person’s life.

The dispute over the 159-year-old law dates back to 1971, when Planned Parenthood filed a lawsuit in Arizona state court asking for a permanent injunction against its enforcement. The Arizona Supreme Court upheld the ban, but the U.S. Supreme Court decided Roe v. Wade just three weeks later. In light of Roe, the Arizona Supreme Court vacated its decision and declared the law unconstitutional.

Since then, the Arizona State Legislature has passed several abortion laws, including specific licensing requirements for doctors performing abortions, informed consent laws, and reporting requirements. Most recently, after the U.S, Supreme Court overturned Roe in 2022, Arizona enacted legislation banning abortion after 15 weeks.

Then, Arizona Attorney General Mark Brnovich sought to reinstate the 1864 law, relying on a state procedural rule that allows for the “reopening [of] otherwise final court orders where there has been a change in the law affecting substantial rights of a litigant.”

Planned Parenthood opposed the attorney general’s suit and asked the court to harmonize the statutory landscape post-Roe rather than reinstate the 19th-century law in its entirety. Read together with subsequent legislation, Planned Parenthood said, the 1864 law should be interpreted as applying only to non-physicians. It argued that allowing the ban to take effect without harmonization with more recent law would allow for contradictions in the applicable law and uncertainty for doctors who provide abortions. In the alterative, Planned Parenthood argued, subsequent legislation rendered the 1864 law implicitly repealed.

The attorney general argued that doctors are clearly covered by the plain language of the 1864 law — which forbids “a person” from providing an abortion.

A trial court sided with the attorney general, vacating the decades-old decision declaring the ban unconstitutional. It explained, simply, that the legal basis for the judgment — Roe — has now been overruled. It refused to evaluate the state of the law beyond whether Roe was still in force.

An intermediate appellate court reversed, noting that the inquiry could not be “artificially narrowed” to just whether Roe was still good law. Rather, a court considering whether to reinstate the 19th-century law had to consider the entire legal landscape related to abortion. It adopted Planned Parenthood’s reasoning that a harmonization of Arizona’s abortion laws meant the 1864 law applied only to non-physicians. To apply the law to doctors, it said, would “criminalize conduct under one statute that [the] legislature has expressly allowed under another.” The attorney general appealed to the Arizona Supreme Court.

The case has attracted amicus support on both sides. Nineteen amicus briefs have been filed, including by the League of Women Voters of Arizona. Their brief acknowledges that the U.S. Supreme Court’s opinion in Dobbs v. Jackson Women’s Health Organization overturning Roe intended that the question of abortion be returned to the individual states, who are free to decide the issue via the democratic process. However, their brief points out, women could not vote when the ban was passed, meaning that a significant portion of the voting population in Arizona was unable to participate in that process when the law was enacted. Enforcement of the ban, therefore, is antidemocratic. Other amici supporting Planned Parenthood include the American College of Obstetricians and Gynecologists, the American Medical Association, and a group of law professors.

Amici supporting the attorney general include entities like the American Association of Pro-Life Obstetricians and Gynecologists and 17 states that restrict abortion, led by Arkansas. The Association of Pro-Life Obstetricians and Gynecologists, for example, claims that abortion can harm pregnant people. The states say that they have an interest in “finally enforcing their abortion restrictions and protecting unborn life” now that Roe has fallen.

The Arizona Supreme Court will hear the case with just six of seven supreme court justices, after justice Bill Montgomery recused himself last week. Planned Parenthood submitted a motion for recusal on October 26, in part because of a Facebook post Montgomery made while he was the Maricopa County attorney in 2017. The post stated that abortion was the “greatest generational genocide known to man.” Montgomery also attended an anti-Planned Parenthood protest in 2015. His recusal raises the possibility of a 3–3 ruling in the case, which would preserve the appellate decision.

Montgomery’s recusal echoes that of Iowa Justice Dana Oxley from a case considering that state’s six-week abortion ban. Oxley recused herself because of her former involvement in “fetal heartbeat” litigation while in private practice. Her recusal led to a 3–3 tie that left in place a lower court decision striking down Iowa’s ban on abortions after the sixth week of pregnancy.

Patricia A. Rossi is the copresident of the League of Women’s Voters of Connecticut and a volunteer with Planned Parenthood of Southern New England.