Abortion foes appeal to revive Arizona’s 1864 near-total ban

A Scottsdale-based law firm is hoping to reinstate a near-total abortion ban from 1864, filing an appeal on Wednesday to overturn a court ruling that allowed limited access to the procedure.

Alliance Defending Freedom wants the Arizona Supreme Court to void the decision of the state appeals court that determined a 2022 law outlawing elective abortions after the 15-week mark supersedes the near-total ban originally written in 1864.

Among their arguments is that the state’s history of Republicans winning elections is evidence enough that both the legislature and citizens side with the 1864 law and want to abolish abortion in Arizona nearly entirely.

“Arizonans deserve to have their laws fully enforced. They made their voice heard at the ballot box — electing Legislature after Legislature to protect life as much as possible. And lawmakers delivered,” the attorneys wrote.

A quick recap

Shortly after the constitutional right to an abortion was struck down in Dobbs v. Jackson Women’s Health Organization last year, then-Attorney General Mark Brnovich went to court to remove an injunction holding back the state’s territorial-era abortion ban. A trial judge in Pima County conceded that the injunction was no longer relevant in a post-Roe Arizona, but her decision to reinstate the near-total ban was reversed in December by a three-judge appellate court panel that restored abortion access up to 15 weeks.

Brnovich argued in court that a provision in the 2022 law stating it didn’t repeal any restrictions that came before it meant the 1864 law should reign supreme, but advocates pointed out that logic meant 50 years of more recent laws heavily regulating the procedure were also preserved — implying that abortion should remain in some form.

The appellate judges sided with abortion advocates, noting that if the legislature, which passed the 2022 law, intended to completely eliminate instead of just restrict abortion, they would have said so more explicitly. Erasing the 2022 law based on its non-repeal provision would be “nonsensical,” they concluded

Before the clarity offered in that ruling, the state had been roiling from conflicting messaging and shuttered clinics as state leaders vied over which of the two bans was the law of the land and doctors refused to provide the service, fearful of the mandatory prison sentence attached to the 1864 law.

The state appeals court’s decision was widely regarded as the final say, especially after voters elected Democrats to state leadership in the November midterms, including current Attorney General Kris Mayes, who has repeatedly reiterated her refusal to take on her predecessor’s hard-line stance against abortion.

But Alliance Defending Freedom filed an appeal on behalf of Dr. Eric Hazelrigg, the medical director of anti-abortion clinic chain Choices Pregnancy Center. Hazelrigg was allowed to intervene on behalf of the state’s unborn children — a position that was added to the case in 1973 when the Civil War-era ban was first litigated.

What does the appeal say?

Attorneys for Alliance Defending Freedom argue that the appeals court wrongly interpreted the Legislature’s intent. Decades of abortion restrictions going back as far as the state’s territorial days hardly mean lawmakers approved of the procedure. The bulk of those laws, passed after 1973, were the result of attempts to inhibit abortion care as much as possible under the “shackles” of Roe. The 1864 law and the 15-week limit passed in 2022 both outlaw abortion, and the appellate court’s conclusion that the latter allowed it to some extent was illogical, attorneys said.

“Multiple restrictions do not make a contradiction, much less allow a doubly condemned act,” reads the brief.

A topmost concern for the appellate judges was the danger of arbitrary prosecution posed by two laws with very different punishments.

The 1864 law mandates between two and five years of prison time for doctors who perform an abortion that wasn’t provided because the mother’s life was in danger, while the 15-week limit carries a class 6 felony if a non-emergency procedure was performed outside of its time parameters. A class 6 felony is the least severe type, and can result in fines, probation or a prison sentence as short as 4 months.

Neither law includes exceptions for pregnancies arising from rape or incest.

While judges worried that prosecutorial discretion could lead to uneven punishment across the state, attorneys rebutted in the appeal that it’s a groundless concern. Other crimes, like writing bad checks, are governed by more than one law and that hasn’t presented a problem before. What matters is that both laws at their core prohibit abortions. The details are resolved on a case by case basis. If a doctor performs an elective abortion, they can be prosecuted under the 1864 near-total ban, and if that abortion was provided after 15 weeks, then they may also be liable under the 2022 law.

“The statutes are clear: no one may perform an abortion except to save the mother’s life. And physicians have no right to limit the menu of charges they may face,” attorneys wrote.

The other side speaks

Planned Parenthood of Arizona, which runs four of the state’s nine abortion clinics and fought in court to keep the 1864 ban at bay, decried the appeal as a “last-ditch effort” from those with extremist ideologies who are ignoring what is best for Arizonans.

“This archaic abortion ban (Alliance Defending Freedom) is trying to revive is cruel, harmful and unpopular with the majority of Arizonans,” Brittany Fonteno, the organization’s president and CEO, said in an emailed statement. “This Civil War-era law should not dictate our reproductive freedom and how we live our lives today.”

Fonteno expressed gratitude that the appeal won’t be strengthened by Mayes’ involvement, as, unlike her predecessor, the Democrat is staunchly pro-abortion. But the challenge is still a threat, and she promised that Planned Parenthood Arizona will work to defeat it and defend abortion access.

“This harmful ban has no place in Arizona and we won’t stop fighting for our patients until true reproductive freedom is achieved in our state,” she said.

Amy Fitch-Heacock is the co-founder of Arizonans for Reproductive Freedom, one of several pro-abortion organizations putting together a ballot initiative for the 2024 election that would ask voters to enshrine abortion access in the state’s constitution.

Fitch-Heacock vowed to continue those efforts and slammed ADF’s appeal as out of step with the public consensus in Arizona. A February 2022 survey conducted by NARAL Pro-Choice America found that 90% of Arizonans agreed that family planning should be free from government interference, and 80% were opposed to punishing doctors for procedures the patient requests.

“(This) is just the latest attempt to undermine the wishes of Arizona’s voting majority and put pregnant people at risk,” Fitch-Heacock said. “We will continue to work together with our statewide reproductive freedom partners to ensure that Arizona voters, not extremist groups, determine our reproductive futures.”

Zoom out

Since Dobbs returned the regulation of abortion to the states last year, Arizona has dealt with a constantly changing reproductive health landscape characterized by threats of additional restrictions. For now, women in Arizona can receive elective abortions up until the 15-week mark, but that access has been increasingly cut off, and is set to see renewed challenges in the near future.

In January, a federal judge reinstated a ban on abortions performed because of a fetal genetic abnormality. That ban is part of a 2021 law that includes a fetal personhood assertion which is currently blocked. The injunction holding it back is set to expire in July, and while Mayes is unlikely to defend the law in court, GOP leaders in the state legislature, with the help of Alliance Defending Freedom, have requested to intervene.

The law firm is also representing an anti-abortion medical association seeking to reverse the FDA’s approval of abortion pill mifepristone in a Texas lawsuit that advocates fear will succeed.

Access in Arizona has long been hampered by a myriad of laws regulating the procedure, and Dobbs has only worsened the burden. One of the state’s nine abortion clinics is facing closure after months of intermittent service, and others have been struggling to meet increased demand from both local and out-of-state women. Arizonans are making the trip to nearby states as well, but they join a growing wave of women in need whose own clinics have been strained or shut down.

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