Can Arizona’s 1864 anti-abortion law coexist with newer statute? Judges grill attorneys

By Ray Stern || Arizona Republic

Arizona appeals court judges in Tucson questioned lawyers for the state and Planned Parenthood on Wednesday about how Arizona should reckon with two overlapping anti-abortion laws passed 158 years apart.

In a lively, nearly 90-minute debate, the three-judge panel of the court’s southern Arizona division challenged the lawyers on how the pre-statehood law could be made to gel with a new law limiting abortions and other statutes on the books, or if modifying its meaning would strip the Legislature of some of its power.

“Our duty is to give the words their effect, not to rewrite the legislation” or deem that part of a law is repealed, said Judge Peter Swann, a retired judge called back to active duty for the case.

The court’s ruling, which may come in days or weeks, could move the state closer to bringing a Civil War-era state law back to life that mandates prison time for abortion providers. Or, as Brittany Fonteno, president and CEO of Planned Parenthood Arizona, said after the hearing, “one step closer to protecting abortion access in Arizona.”

Whatever the decision, a deal between Planned Parenthood Arizona and outgoing state Attorney General Mark Brnovich means the newest abortion law in Arizona will remain in place until next year. That law, signed by Gov. Doug Ducey this year, bans most abortions after 15 weeks of gestation.

The pre-statehood law was among the chief reasons Arizona’s abortion facilities temporarily shut down after the U.S. Supreme Court overturned Roe v. Wade in June. Even after the deal with the state allowed facilities to reopen, providers and abortion-rights activists still worry the old law could be enforced at some point.

Arizona Attorney General-elect Kris Mayes speaks to the media in downtown Phoenix on Nov. 22, 2022.

The issue may be a moot point past Jan. 2, to some extent, when Kris Mayes, a Democrat, is expected to take office as Arizona attorney general. Mayes has vowed not to enforce the old law and indicated Wednesday before the hearing that state support for the “draconian and unconstitutional” law would soon end.

“I will withdraw the attorney general’s current support for that law when I take office,” she told The Arizona Republic.

But the legal arguments on Wednesday show that confusion over the dos and don’ts of Arizona abortion law will persist without clarity from the courts.

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