December 16, 2023

The Buzz: Arizona navigates legal uncertainty with two conflicting abortion bans

Arizona contends with a legal tangle over two conflicting abortion laws, leaving providers and patients in uncertainty.

abortion protest signs
Gage Judd/AZPM
The Buzz

The Buzz for Dec. 15, 2023

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Since the overturn of Roe vs. Wade, the abortion landscape in Arizona has confused both providers and patients.

Before the constitutional right to abortion was overturned, the Arizona state legislature passed a bill, which banned abortion after 15 weeks gestation. But once abortion protections were no longer guaranteed across the country, then Republican Attorney General Mark Brnovich sought to lift an injunction on Arizona’s pre-statehood law that bans and criminalizes nearly all abortions except for saving a pregnant person's life. Once both laws were back into effect, it left patients and providers wonder-is abortion banned or legal up until 15 weeks gestation?

The Arizona Supreme Court heard arguments Tuesday from Alliance Defending Freedom’s lead counsel Jake Warner, who is representing complainants and intervenors Dr. Eric Hazelrigg and Yavapai County Attorney Dennis McGrane.

In his arguments, Warner told the justices that he believed the near-total ban and 15 week gestation law can work together.

“We can debate the legislative intent here, but I believe that the legislative text is clear,” Warner said. “What the legislature did is that it created an additional requirement on top of section 13-3603.”

But Chief Justice Robert Brutinel questioned the validity of that argument.

“The point I'm trying to make with you is I think that if in fact Dobbs had done what the legislature intended, that would not be the argument you'd be making,” Brutinel said Tuesday. “You'd be making this is constitutional because it allows an elective right to abortion up until 15 weeks. But what I'm suggesting to you is what it looks to me like is their intent was to create a statute that would accomplish that.”

Following the arguments, Warner stood his ground saying, “we can debate the art but the grammar here is sound. The reason we have lawsuits is when there is debate over over words, oftentimes, and this is one of those examples.”

To the parties he is representing, they believe that the 15-week gestation law does not permit abortion. Rather it adds more guidelines about what is and is not permitted after 15 weeks.

“If you put these pieces of the puzzle together, it suggests that the legislature is in no means trying to protect life less than it did before Roe,” Warner said. “It's trying to protect as much life as possible while Roe remained in place.”

But founder of the legal nonprofit Public Rights Project Jill Habig disagreed.

“I think that's hard to accept [that argument] with a straight face given the statutory framework in Arizona law,” Habig said.

Her firm is representing Pima County Attorney Laura Conover in the suit. Conover along with Planned Parenthood Arizona are arguing for the harmonization of the two laws.

“This case is relatively legally straightforward, because Arizona has had 50 years of lawmaking about the ins and outs of abortion regulation in the state, all assuming, and very specifically providing for some form of abortion,” Habig said.

If the state’s high court chooses to rule in favor of Warner’s arguments, it means abortion would be banned from the state, with the exception of saving a pregnant person’s life. For providers like Dr. Gabrielle Goodrick, the founder and medical director of Camelback Family Planning, she remembers what it was like when her clinic could not provide abortion services.

“When we were closed, we didn't know when we'd be able to open,” Goodrick said. “Then we opened and then we were waiting for the ruling in September. We didn't know what would happen. Would we close? Would we open?”

She equated Tuesday’s hearing to PTSD, reminding her of the fear and shock she felt when abortion was uncertain.

“I was kind of living in a little bubble until different media people began reaching out. And I'm like, no, no, no, no, no. It's almost like PTSD,” Goodrick said.

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