An uninhabited recovery area, left, and an abortion procedure room are seen at a Planned Parenthood Arizona facility in Tempe, Ariz., on June 30, 2022. On December 30, the Arizona Court of Appeals concluded that abortion doctors could not be prosecuted under a law criminalizing nearly all abortions.
Matt York / AP
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Matt York / AP
An uninhabited recovery area, left, and an abortion procedure room are seen at a Planned Parenthood Arizona facility in Tempe, Ariz., on June 30, 2022. On December 30, the Arizona Court of Appeals concluded that abortion doctors could not be prosecuted under a law criminalizing nearly all abortions.
Matt York / AP
PHOENIX — An Arizona court has ruled that abortion doctors cannot be prosecuted under pre-state laws that criminalize nearly all abortions but have been barred from doing so for decades.
But the Arizona Court of Appeals on Friday refused to repeal the 1864 law, which provides for a sentence of two to five years in prison for anyone who aids abortion and makes no exceptions for rape or incest.
The court, however, said doctors cannot be prosecuted for performing abortions because other Arizona laws passed over the years allow them to perform the procedure, even though non-doctors Doctors can still be charged under the old law.
The Court of Appeals wrote: “The statutes, read together, make it clear that physicians are authorized to perform abortions as prescribed” by other abortion laws.
The pre-state law, which only allows abortion if the patient’s life is in danger, was blocked shortly after the US Supreme Court issued Roe v. Wade in 1973 guaranteed women the constitutional right to abortion.
But after the Supreme Court overturned the landmark decision in June, Attorney General Mark Brnovich asked a state judge for permission to enforce the law.
The Arizona Court of Appeals said it does not view the pre-state law as separate from other state abortion laws, explaining that “the legislature created an elaborate regulatory scheme to achieve a limited purpose.” – but not eliminating – elective abortion.”
In a statement, Brittany Fonteno, president and chief executive officer of Planned Parenthood Arizona, said the decision means that state laws restricting abortions to 15 weeks of pregnancy will remain in place.
“Let me make it clear that today is a good day,” Fonteno said. “The Arizona Court of Appeals made it clear to us that Planned Parenthood Arizona has been searching for months: When provided by physicians licensed to comply with other Arizona laws and regulations, abortion in 15 weeks will still be legal.”
The Court of Appeals rejected Brnovich’s claim that doctors could be prosecuted under pre-state law, saying the attorney general’s argument ignored the intent of the Legislature to regulate but not eliminate abortion and violation of due process by promoting arbitrary enforcement.
“Brnovich’s interpretation would not merely invite arbitrary enforcement, but would in fact require it,” the appeals court wrote.
The attorney general’s office did not immediately respond to a request for comment on the decision, which was made Friday afternoon.
Abortion providers, which stopped offering the procedure in the state after Roe was struck down, were restarted in mid-July after a “personality” law giving legal rights to unborn children was hit by a court intercepted and stopped them when a judge in Tucson allowed the 1864 law to be enforced.
Planned Parenthood Arizona, the state’s largest abortion provider, has restarted abortion services statewide after Brnovich’s office agreed in another lawsuit to not enforce the old law at least until next year.
A Phoenix doctor runs an abortion clinic, and the Arizona Medical Association has also filed a separate lawsuit seeking to block the territorial age law, arguing that the laws enacted by the Legislature Action after Roe’s decision should take precedence and should allow abortion until 15 weeks’ gestation.
Brnovich sought to delay that case until the Court of Appeals decided the Planned Parenthood case. In an agreement with the abortion doctor and medical association, he said he would not enforce the old law until at least 45 days after the final verdict in the original case.
A law enacted by the Legislature this year limiting abortions to 15 weeks of pregnancy, before 24 weeks is normally allowed under the Roe ruling that was overturned by the US Supreme Court in December. 6.
After Roe’s decision was overturned and abortion was handed over to the states, bans went into effect in some states.
Abortion is illegal at all stages of pregnancy, with various exceptions, in 13 states: Alabama, Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, Oklahoma, South Dakota, Tennessee, Texas, West Virginia and Wisconsin.
The bans in Arizona, Montana, North Dakota, Ohio, South Carolina, Utah and Wyoming are also ineffective, at least for now, as courts decide whether they are enforceable.
