Legal expert on what you need to know about Arizona's near-total abortion ban

Published: Wednesday, April 10, 2024 - 11:12am

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Tim Agne/KJZZ

The Arizona State Courts Building in downtown Phoenix houses the Arizona Supreme Court and the Arizona Court of Appeals.

The Arizona Supreme Court decision on a near-total abortion ban wasn't unanimous. It was a 4-2 decision, with the majority of the justices ruling in favor of the 160-year-old ban.

Legal expert Barbara Atwood spoke with The Show about the court's reasoning and the legal questions that still remain. She's a law professor emerita at the University of Arizona who specializes in family law.

What was the legal reasoning behind the majority's ruling?

BARBARA ATWOOD: The four justices in the majority took the position that the so called 15 week law itself did not create a right to abortion. That it was simply a restriction on abortion that imposed criminal penalties for abortions performed after 15 weeks of gestation. The reason that's important is that they were basically able to nullify that law. They did not find the need to harmonize it with the old ban. Instead, it said the, old ban is effective. There's nothing to keep the old ban from coming into effect. The old, the only reason the old ban was struck down back in 1973 was because of Roe v. Wade. When Roe v. Wade disappeared, the old ban came back into effect.
Essentially, they revived the trial court ruling in this case and is at this point, having both laws in effect. But the old ban in full effect. And that means that as it says, in its opinion, abortions right now are governed by the old ban. They are illegal unless necessary to save the life of the mother, in the words of the statute. Of course, that doesn't address the actual effectiveness of this ruling. It will, there will be some delay in its effect.

The chief justice and vice justice dissented. What did they think the majority ruling was wrong?

ATWOOD: Yeah, two justices dissented. The chief justice and the vice chief justice, Chief Justice [Robert M.] Brutinel and Vice Chief [Justice Ann A. Scott] Timmer. Justice Timmer wrote the dissenting opinion and it was quite strongly worded. She vehemently disagrees with the position that the majority has taken and she said that what the majority has done is essentially read into Arizona law a trigger law. Trigger laws, as listeners probably know, are laws that some states enacted over the years saying if Roe v. Wade is ever overturned, we want these old restrictions to come back into effect.

Arizona's Legislature never enacted a trigger law, but the majority found essentially sufficient desire for such a trigger law by implication accomplish what an express trigger law would have accomplished. Justice Timmer disagrees with that reasoning. As does the chief justice.

Peter Eisner

Barbara Atwood

When will the near-total abortion ban go into effect?

ATWOOD: Yeah, the court says that it does not want its ruling to go into effect for 14 days. It's sending the case back to the trial court. There were separate challenges raised against the old ban, the territorial ban, or refers to those and says we're, you know, those, those can now be asserted and litigated. It's giving the parties, in other words time to sort of sort things out.

There's an additional complication though. A parallel lawsuit filed back in 2022 against the old ban reached a stipulation. The plaintiffs were a physician and the Arizona Medical Association against the state. They reached a stipulation with then Attorney General [Mark] Brnovich that once the Arizona Supreme Court got this case and resolved it, it would not be effective, prosecutions under the old ban could not go forward for 45 days from the mandate of the Supreme Court. So some people are putting those together and say that, well, at least for about 60 days, for sure, we're going to have a period of time in which this ruling will not go into effect. I think there it will stretch out longer given litigation.

What are the other legal questions that will still go to court here?

ATWOOD: I think that separate challenges to this law can be asserted and those might be, for example, a challenge under Arizona's constitutional right to privacy. There were some vagueness challenges that the Arizona Supreme Court in [Tuesday's] decision did not reach. What does it mean to say an abortion is necessary to save the life of the mother, for example. How urgent and how imminent does death have to be. And so there are some unresolved issues regarding the territorial ban. Those will be litigated, they will be asserted by the plaintiffs.

I predict whatever the ruling is at the trial court level, if it's against the plaintiffs, they will undoubtedly appeal it and they will seek a stay. And I think we'll see that same unfolding of the procedural track again up to the higher courts in Arizona. So it's, you know, a lot of uncertainty about what's ahead but it, at least for the time being the existing 15 week law is still in effect.

Who can be prosecuted under the 1864 law?

ATWOOD: Well, it itself applies to any person who supplies a pregnant woman with any medicine, drugs or substance or instrument to procure the miscarriage of such woman. It itself punishes that person who, who performs the abortion of supplies the material for an abortion and subjects that person, unless it's necessary to save her life, subjects that person to imprisonment for not less than two years, no more than five years.

A comparable law that would have punished women, the woman on whom the abortion was to be performed was repealed by the Arizona Legislature a couple of years ago. So this is really aimed at the medical professionals who are performing the abortions.