Arizona Supreme Court hears arguments on future of access to reproductive rights

PHOENIX (CN) — The Arizona Supreme Court will soon reconcile two conflicting laws governing access to abortion in the Grand Canyon state. 

Months before Roe v Wade was overturned in the U.S. Supreme Court, the Arizona legislature passed a law known as Title 36, which expressly prohibits abortions after a 15-week gestational period in the absence of a medical emergency. Against the backdrop of Roe v Wade, the law meant that abortions performed up to 15 weeks are legal.

But the U.S. Supreme Court’s decision in Dobbs v Jackson overturned the decades-old constitutional right to abortions — potentially reviving a near-total ban on abortions in Arizona.

That law, known as Section 13-3603 or the territorial ban, was passed in 1864 — 48 years before Arizona became the 48th state in the Union. The law again makes exceptions only if the abortion is necessary to save the mother’s life.

Now, the state is grappling with how to enforce the two inconsistent statutes. 

Andy Gaona, representing Planned Parenthood before the state Supreme Court Tuesday morning, said the laws should be balanced, allowing physicians to perform abortions up to 15 weeks even without a medical emergency and banning non-physicians from performing abortions altogether.

That reading would uphold the Arizona Court of Appeals’ ruling in December 2022, which was then appealed to the Supreme court by Dr. Eric Hazelrigg, an Arizona gynecologist and obstetrician.

Justice Ann Timmer, appointed by former Republican Governor Jan Brewer, asked Gaona whether the legislature needs to specifically declare a right to then regulate it. Because Title 36 only prohibits abortions after 15 weeks and doesn’t say anything about performing them before, she reasoned that the law may not actually allow pre-15 week abortions.

Gaona disagreed. 

“Criminal laws allow what which they don’t criminalize,” he said.

He admitted that the law doesn’t create a right to abortion — but because it doesn’t prohibit it before 15 weeks, that means it is legal, he said.

He compared it to himself driving 35 miles per hour when the speed limit is 45.

“I don’t have a right to do it, nor does the legislature need to create one,” he said. “But I can’t be prosecuted for it.”

Jake Warner, representing Hazelrigg and the Yavapai County attorney, argued that Title 36 doesn’t create an exception to the territorial ban. Instead, he said it merely adds another requirement for performing abortions after 15 weeks.

“Up to 15 weeks, the termination must be lifesaving,” he told the court. “After 15 weeks, the termination must not only be lifesaving, but must be immediately necessary to save the mother’s life or prevent significant or irreversible bodily damage.”

Warner didn’t explain the difference between a procedure being lifesaving and being “immediately necessary to save the mother's life,” other than repeating that “not all life-saving abortions are medical emergencies.”

Arizona Solicitor General Josh Bendor, arguing on the side of Planned Parenthood, told the court that Warner contradicted his own opening brief, in which he conceded that all life-saving abortions are indeed medical emergencies. 

Chief Justice Robert Brutinel, also appointed by Brewer, called Warner’s reading of the laws unreasonable, asking “what was the point” of passing Title 36 if it doesn’t allow abortions before 15 weeks.

Warner explained that because the territorial ban was enjoined from enforcement by Roe, the legislature did what it could to protect life. Now that Roe is overturned, though, it simply modifies the requirements of the territorial ban.

“The legislature was doing the best it could to preserve life at every stage,” he said.

Bendor countered that if the legislature didn’t intend Title 36 to allow abortions up to 15 weeks, it could and should have included a sentence saying just that. Because it didn’t, he reasoned, one can’t assume the legislature didn’t intend to allow abortions up to 15 weeks, 

“At the very best for the other side, their language is ambiguous,” he said. “The 15-week law contains permissions, not just additional prohibitions.”

Gaona finished his arguments by asking the court to consider abortion as health care, suggesting that no one had ever spoken those words inside the Supreme Court building before. He told the court its decision will have a “profound impact” on pregnant Arizonans. 

Warner closed by asking the court to help Arizona preserve life, which he said he had done for 100 years before Roe v Wade was decided.

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