By Howard Fischer
Mail | Twitter: @azcapmedia

PHOENIX — The Arizona Supreme Court decided Wednesday it will consider whether Arizona law actually prohibits virtually all abortions.

In a brief order, the justices said they will hear arguments from abortion foes that the decision of the U.S. Supreme Court last overturning Roe v. Wade, which guaranteed a constitutional right of abortion, automatically reinstated Arizona’s territorial-era law that makes it illegal to terminate a pregnancy except to save the life of the mother.

That could pave the way for the state’s high court ultimately to void a decision last year by the state Court of Appeals that concluded a more recent statute actually allows abortions to be performed legally through the first 15 weeks of pregnancy.

The  justices' decision to review the lower court ruling doesn’t mean they will overturn it. But just the fact the court is willing to consider the possibility the territorial-era law would be reinstated was enough to alarm advocates.

“This archaic abortion ban the intervenors are trying to revive is cruel, harmful, and unpopular with a majority of Arizonans,” said Kelly Dupps, senior director of public policy and government relations for Planned Parenthood Arizona in a prepared statement. “It has no place dictating our reproductive freedom and how we live our lives today.”

If nothing else, though, just the possibility that women in Arizona could find themselves without the right to abortion pretty much for the first time since 1973 could add fuel to a recently announced initiative seeking to enshrine the right to abortion in the state constitution.

If that move is successful, it would trump whatever the justices ultimately decide.

But even if supporters gather the necessary 383,943 valid signatures by July 3, 2024, to put the issue to voters, it would not be on the ballot until Nov. 5, 2024 — months after the Arizona Supreme Court will hear arguments and renders a decision.

Abortions except to save the life of the mother were illegal in Arizona until the U.S. Supreme Court ruled in 1973 that women have a constitutional right to terminate a pregnancy prior to fetal viability. That generally is considered to be between 22 and 24 weeks.

That overrode the territorial-era law, precluding its enforcement in Arizona. But state legislators never repealed the statute and it remains to this day on the books.

What changed was the decision by the U.S. Supreme Court last year to review a Mississippi law that sought to ban abortions after 15 weeks. Anticipating a favorable decision, abortion foes in Arizona enacted and Gov. Doug Ducey signed mirror legislation to have it ready to enforce here.

But the Supreme Court went further, overturning its own 1973 precedent and leaving it up to each state to decide what restrictions or outright bans they want to place on abortions.

Abortion foes here now contend that automatically returned the law to the way it was before Roe.

That was the argument advanced by Mark Brnovich who was attorney general last year. He even got Pima County Superior Court Judge Kellie Johnson to rule the old law was once again valid. And abortions came to a halt in Arizona.

The Court of Appeals disagreed, agreeing with Planned Parenthood Arizona that the 2022 law prohibiting doctors from performing an abortion after 15 weeks supersedes the old law. Abortions resumed, at least those in that stage of pregnancy.

And all that sets the stage for Supreme Court review.

But the legal playing field is different now.

Voters in November elected Democrat Kris Mayes as attorney general. And she is siding with Planned Parenthood in the fight.

In fact, Mayes contends a provision in the Arizona Constitution guaranteeing a right of privacy allows for abortions in even more circumstances. That issue, however, is not currently before the state Supreme Court.

Having Mayes support the position that abortions are legal in Arizona through 15 weeks leaves Dr. Eric Hazelrigg, who the court appointed to represent the interests of unborn children, as the sole defender of the argument that the old law is enforceable and virtually all abortions are illegal. He is represented by the Scottsdale-based Alliance Defending Freedom.

The biggest argument abortion foes have is the language of that 15-week ban. It spelled out the 15-week restriction did not repeal the territorial-era law “or any other applicable state law regulating or restricting abortion.”

That, they said, should have been the end of the debate, saying it was the clear intent of people who had elected the lawmakers, “to fully protect life.” Instead, challengers say, the appellate judges created and resolved a “manufactured conflict” with the new law by partly repealing the old one.

But it isn’t just Planned Parenthood and Mayes who believe the newer law takes precedent.

After signing the 15-week ban in 2022, Ducey told Capitol Media Services that he believed it would preclude the state from once again enforcing the territorial-era law.

“The law of the land today in Arizona is the 15-weeks law,” he said. And Ducey said the fact lawmakers never repealed the old law, which was enforceable until 1973, is irrelevant.

“This law was signed this year,” he said. “I think that the law you signed in 2022 supersedes 1973.”

Further complicating the legal issue is that the justices, in agreeing Wednesday to review the issue, also granted a request by Yavapai County Attorney Dennis McGrane to intervene in the case.

Jacob Warner, an attorney with Alliance Defending Freedom — the same group representing Hazelrigg — told the justices that he has a special interest that needs to be represented.

Warner said Hazelrigg, medical director of the Crisis Pregnancy Center, represents the interests of unborn children.

By contrast, he said, McGrane wants to represent “the interests of all people in his jurisdiction.” And what that means, said Warner, is to “fully enforce” the territorial-era law.

Denise Harle, senior counsel at Alliance Defending Freedom, said in a prepared statement the justices should allow the old law to take effect to “protect the lives of countless innocent unborn children.”

“Arizona women deserve the dignity and respect that comes from receiving life-affirming health care and support, not the abortion industry’s false choice between doing what’s best for the mother and protecting the life of her child,” she said.