A coalition of 17 states, led by Arkansas, is among the entities asking the Arizona Supreme Court to reverse a ruling barring Arizona’s territorial-era law restricting abortions from being enforced.
The current abortion struggle in the state surrounds Arizona Revised Statute (ARS) § 13-3603, the pre-Roe law which states that no person is allowed to provide a pregnant woman with an abortion unless it is necessary to save the mother’s life and ARS § 36-2322, which was enacted in 2022 and prohibits the procedure after 15 weeks of pregnancy. The Arizona Court of Appeals previously ruled that the 15-week ban takes priority over the previous law, in part to avoid any confusion for medical professionals.
In an amicus brief, the group of states argued that this should not be the case.
“With Roe gone, States are free to enforce previously enjoined abortion restrictions and enact new ones,” the states wrote. “Amici write to ensure that Arizona may as well.”
To start, the group argued that the lower court order does not reflect legislative intent. While the law permits abortions before 15 weeks, this law was created and signed into law before the Supreme Court of the United States (SCOTUS) overturned Roe v. Wade. Nothing in the bill that became law suggests it is intended to allow abortions; in fact, the law clearly states it does not create or recognize a right to the procedure.
“The legislature could hardly have been clearer that it intended to bar elective abortions, not authorize them,” the states argued.
Moreover, the states argued that the lower court “created conflict where none exists” because both laws could coexist. As evidence, the group pointed to how abortion laws are handled in several states involved in the brief. In Arkansas, a law outright banning elective abortions and three other laws outlawing the procedure at 12 weeks, 18 weeks, 20 weeks, and viability. In Alabama, a similar pre-Roe law prohibits abortions, and another law for after 20 weeks. Also, Missouri has a ban on elective abortions and prohibitions several weeks into pregnancy. All of these laws are enforceable at the same time.
“Because both laws prohibit, rather than authorize, abortions, the court of appeals’ concern that physicians would face ‘uncertainty’ about whether ‘their conduct would be criminally prosecuted’ is unwarranted,” according to the brief.
The states asked for the court to grant a review and reverse the 15-week decision.
This group of states is one of eight amicus briefs submitted to the Arizona Supreme Court in this case. As reported by The Arizona Sun Times, two of these briefs are from the Center for Arizona Policy and legislators House Speaker Ben Toma (R-Peoria) and Senate President Warren Petersen (R-Gilbert). Other entities that have called on the high court include the American Association of Pro-Life Obstetricians and Gynecologists, the American College of Pediatricians, and former State Representative Jill Norgaard (R-Phoenix).
The Scottsdale-based legal nonprofit Alliance Defending Freedom (ADF) presented all of these briefs. After the lower court first made the 15-week order, ADF filed for intervention and review of the case in March.
With all of these briefs submitted in favor of the review, ADF released a recent statement declaring that the court should consider all of these testimonies and proceed with the review.
“Since Attorney General Mayes has said she refuses to defend the state’s duly enacted pro-life law, we urge the Arizona Supreme Court to listen to the voices of the legislators, other states, and numerous groups who have joined in asking the court to uphold this critical law that protects the lives of mothers and their children,” said ADF senior counsel Denise Harle.
The Sun Times reached out to ADF for updates on this case but did not hear back before press time.
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Neil Jones is a reporter for The Arizona Sun Times and The Star News Network. Follow Neil on Twitter. Email tips to [email protected].
Photo “Pregnancy Test” by RDNE Stock project.
