Appeals court ruling allows Arizona abortions to restart

Caption

Celina Washburn protests outside the Arizona Capitol to voice her dissent with an abortion ruling on Sept. 23, 2022, in Phoenix. / AP

PHOENIX — Abortions can take place again in Arizona, at least for now, after an appeals court on Friday blocked enforcement of a pre-statehood law that almost entirely criminalized the procedure.

The three-judge panel of the Arizona Court of Appeals agreed with Planned Parenthood that a judge should not have lifted the decades-old order that prevented the older law from being imposed.

The brief order written by Presiding Judge Peter J. Eckerstrom said Planned Parenthood and its Arizona affiliate had shown they are likely to prevail on an appeal of a decision by the judge in Tucson to allow enforcement of the old law.

Planned Parenthood had argued that the lower court judge should have considered a host of laws restricting abortions passed since the original injunction was put in place following the U.S. Supreme Court's 1973 decision in Roe v. Wade that said women have a constitutional right to an abortion.

Those laws include a new one blocking abortions after 15 weeks of pregnancy that took effect last month. The previous limit was 24 weeks, the viability standard established by now-overruled U.S. Supreme Court cases.

"Arizona courts have a responsibility to attempt to harmonize all of this state's relevant statutes," Eckerstrom wrote, mirroring arguments made by attorneys for Planned Parenthood.

The U.S. Supreme Court overruled Roe in June, and Republican Arizona Attorney General Mark Brnovich then asked that the injunction blocking enforcement of the pre-statehood abortion be lifted. It had been issued in 1973, shortly after Roe was decided. Pima Court Superior Court Judge Kellie Johnson agreed on Sept. 23 and lifted the order two weeks ago.

"Today's decision provides a desperately needed sense of security for both our patients and providers," Alexis McGill Johnson, president and CEO of Planned Parenthood Federation of America, said in a statement. "We can now breathe a sigh of relief and serve patients. While the fight isn't over, for now, Arizonans will once again be able to make their own decisions about their bodies, health care decisions, and futures."

Brnovich spokeswoman Brittni Thomason said in a statement that "our office understands this is an emotional issue, and we will carefully review the court's ruling before determining the next step."

Republican Gov. Doug Ducey has said the 15-week law he signed in March takes precedence. But his lawyers did not seek to argue that position in court.

Language in the new 15-week ban said it does not repeal the pre-statehood law, and Brnovich and some Republican lawmakers have insisted the old law takes precedence. It contains an exception if the life of the mother is at risk, but not for rape or incest.

Providers across the state stopped abortions after the U.S. Supreme Court decision, but many restarted procedures in mid-summer. That came after a federal judge blocked a separate "personhood" law they worried would allow criminal charges against doctors and nurses. They halted again after Johnson's ruling.

Planned Parenthood and other abortion rights advocates have repeatedly said that Arizona's competing abortion laws create confusion for providers and patients.

The appeals court said Planned Parenthood has shown it is likely to prevail on its argument that the trial court erred by limiting its analysis only to the attorney general's request to lift the 50-year-old injunction and refusing to consider the later laws passed by the Legislature to regulate abortion.

Eckerstrom wrote that a stay is appropriate "given the acute need of healthcare providers, prosecuting agencies, and the public for legal clarity as to the application of our criminal laws. Notably, in the underlying litigation both parties sought some form of such clarification from the court."

The appeals court set a hearing for next week to consider whether to set an expedited schedule for hearing Planned Parenthood's full appeal.

Separately this week, a Phoenix doctor and an abortion rights group sued to block the old law, raising similar arguments that Johnson had rejected. In her ruling, Johnson wrote that while there may be legal questions regarding conflicting laws, they were not properly before her.

Some clinics in Arizona have been referring patients to providers in California and New Mexico since Johnson lifted the injunction on the old law. The pre-statehood law carries a sentence of two to five years in prison for doctors or anyone else who assists in an abortion. Last year, the Legislature repealed a law allowing charges against women who seek abortions.

One Phoenix clinic has come up with a workaround to allow patients who can use abortions pills to get them delivered to the California-Arizona border for pickup. That cuts the time it takes to get abortion pills, which are effective up to 12 weeks gestation, from a two-day trip to one that can be done in a day.

Since Roe was overturned, Arizona and 13 other states have banned abortions at any stage of pregnancy. About 13,000 people in Arizona get an abortion each year, according to Arizona Department of Health Services reports.

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