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Arizona court rules abortion doctors cannot be charged under 1864 law

By Sarah May on
 January 3, 2023

The Arizona Court of Appeals last week declined to formally reverse a state law from 1864 which provides for the imprisonment of anyone assisting with the performance of an abortion but simultaneously ruled that doctors who carry out such procedures cannot be prosecuted under the statute, as the Associated Press reportsAt the same time, the Court ruled that the state's 15-week abortion ban will be allowed to go into effect. 

The outcome was the end product of significant legal jostling in the state in the aftermath of the U.S. Supreme Court's summer ruling in Dobbs v. Jackson Women's Health Organization, which overturned the longstanding abortion precedent of Roe v. Wade.

Post-Dobbs wrangling

Arizona was among a number of states in which the legal status of abortion was a hot legislative topic both before and after the Dobbs decision was handed down in June, and earlier this year, then-Gov. Doug Ducey signed into law a statute banning abortion after 15 weeks' gestation, as the Arizona Republic reported.

Also causing controversy within the state was the existence of a 158-year-old statute that mandated prison time for those providing abortions in the state, a law the enforcement of which became at least a theoretical reality upon the reversal of Roe.

As the Republic noted, the resulting legal uncertainty across Arizona prompted eight out of the nine abortion clinics in the state to halt procedures for a time pending anticipated litigation, which did ultimately ensue.

Appeals Court decides

Some of the aforementioned ambiguity was resolved Friday when the state's court of appeals declared that it would not repeal the 19th-century statute, which subjects those involved in performing abortions to prison terms between two and five years, without any exceptions for cases of rape or incest.

Notably, however, the court also ruled that despite the law's continued existence on the books, physicians cannot be prosecuted for performing abortions during the first 15 weeks of a woman's pregnancy.

In issuing its opinion, the appeals court held, “The statutes, read together, make clear that physicians are permitted to perform abortions as regulated” by laws governing the procedure passed in subsequent years.

The panel stated that the 1864 law ought not be viewed in isolation but must be assessed in the context of the “complex regulatory scheme” constructed over time by the legislature to “achieve its intent to restrict – but not to eliminate – elective abortions.”

While doctors are immune from prosecution under the old law, provided they remain within the 15-week limitation, no such protection exists for non-doctors who participate in the provision of abortion services.

Reactions pour in

In the wake of the appeals court ruling, Brittany Fonteno, Planned Parenthood Arizona's president and CEO issued a statement praising the outcome.

“Let me be crystal clear that today is a good day. The Arizona Court of Appeals has given us the clarity that Planned Parenthood Arizona has been seeking for months,” Fonteno began.

“Stopping Attorney General [Mark] Brnovich's efforts to impose a near-total abortion ban in the state has been a hard-fought victory, but we won't be fooled, we know the work is not over,” Fonteno nevertheless cautioned.

Absent from most public statements was any mention of the fact that the Court had also allowed Arizona's 15-week ban on abortions to go into effect.

“In Arizona, we know there is immeasurable value in every life – including preborn life. . . . I believe it is each state’s responsibility to protect them,” Republican Doug Ducey, then governor, wrote at the time the law was signed.

State-level debates continue

The AP noted that the office of Arizona's attorney general did not offer immediate comment on the appeals court's decision, though newly sworn-in AG Kris Mayes, herself an abortion rights proponent, indicated on social media that she concurred with the ruling and would “continue to fight for reproductive freedom,” a clear sign that she will not pursue an appeal as her predecessor, Brnovich, almost certainly would have.

Arizona's experience is emblematic of the unsettled nature of abortion law in a number of jurisdictions in the aftermath of the Dobbs decision that remanded the issue to the individual states.

As things currently stand, abortion is illegal at any stage of pregnancy – with a range of applicable exceptions – in 13 American states, as the AP noted, and bans on the books in several other states remain in limbo while challenges continue to make their way through the courts.