Letter of the law(s): Prosecutors confused by conflicting abortion laws

Abortion supporters and opponents at the Supreme Court in June, before the court overturned Roe and said abortion is a question states should decide. That has jumbled the law in Arizona, where lawmakers this year approved abortion up to 15 weeks and a superior court judge just revived a 1901 abortion ban – leaving county prosecutors unsure which law to enforce. (File photo by Neetish Basnet/Cronkite News)

WASHINGTON – Whatever their position on abortion rights, the Arizona county attorneys who would be responsible for enforcing the state’s abortion law all acknowledge that they will do their best to follow it.

Except that they’re not all sure what the law currently is.

A Pima County Superior Court judge ruled last week that the state’s 1901 law criminalizing most abortions was back in effect, after the U.S. Supreme Court reversed its 1973 Roe v. Wade decision recognizing a right to an abortion.

Judge Kellie Johnson’s ruling came just one day before a new state law allowing abortions up to 15 weeks of pregnancy was scheduled to take effect, on Sept. 24.

“The confusion isn’t that we can’t read the law, we can’t reconcile the law,” said Coconino County Attorney William Ring.

He noted that under the newly passed law, a pregnant woman could “lawfully obtain an abortion under Senate Bill 1164, and in the other circumstance, under the earlier law, the abortion is unlawful. Both laws contradict each other in a contradiction that can’t be solved by a prosecutor.”

State officials have not helped clarify things. In the past week, Attorney General Mark Brnovich and Gov. Doug Ducey have put forward different versions as the current law, and Brnovich on Wednesday urged Ducey to call a special legislative session to straighten things out.

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Brnovich, who went to court to remove the 1973 injunction that blocked the pre-statehood law, said state lawmakers never overturned the 1901 ban, even when they were approving laws that allowed abortion in the state, like the 15-week ban. He said in his letter to Ducey that after Johnson’s ruling, the near-total pre-statehood ban “is now in effect statewide.”

But officials in Ducey’s office say the new 15-week abortion limit took effect a day after Johnson’s ruling came down.

“The governor signed it, and that law went into effect on Saturday,” a spokesperson said, adding that the office had received and was reviewing the Brnovich letter but had no further comment.

That leaves county attorneys on their own to figure it out.

“The problem here is providers don’t know what is lawful and what’s not,” said Pima County Attorney Laura Conover.

“I think it’s going to be step by step and day by day, and each day may present new challenges as the ligation moves forward,” Conover said. “The latest, most recent word from the legislature was a very clear vote to allow services all the way up to 15 weeks.”

That was the argument that Conover and Planned Parenthood Arizona made to Johnson in August, as she considered Brnovich’s request to lift the injunction and restore the old ban. They said that reinstating the old law when there are 50 years of laws on the books in Arizona regulating abortion as a safe and legal medical procedure, would lead to confusion for both health care providers and prosecutors trying to decide what to do.

The 1901 law, Arizona Revised Statute 13-3603, makes a criminal of anyone who “provides, supplies or administers to a pregnant woman … any medicine, drugs or substance or uses or employs any instrument” to cause an abortion. The law allows abortions when it is necessary to save the mother’s life, but does not have rape, incest or other exceptions.

The new 2022 law allows for abortions up to 15 weeks of pregnancy, except in cases of rape or incest or in a medical emergency.

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Brnovich said the differing opinions between his office and Ducey’s are “being cited by Planned Parenthood in court to undermine the State’s defense … and to seek a stay of the court’s ruling lifting the prior injunction.” He urged Ducey to submit a court filing to “assist in providing clarity” for prosecutors on the law.

In smaller counties that are not home to any abortion clinics, county attorneys could not offer any more clarity about the issue, but said they are not as concerned as the large-county attorneys.

“Our county does not have any providers and as a result, I don’t believe I’ll encounter the situation of needing to interpret or opine on the statute at issue,” Cochise County Attorney Brian McIntyre said in an email.

That was echoed by Greenlee County Attorney Scott Adams.

“We don’t have any providers or clinics or anything of the sort that provide or perform abortions in Greenlee County,” Adams said. “The ruling isn’t something that really affects us in any way.”

In response to a request for comment, aides to Maricopa County Attorney Rachel Mitchell provided a videotaped statement in which she said she “will not prosecute women for having abortions” – even though neither the 1901 law nor the 2022 law would make a criminal of a person getting an abortion.

In the video, posted to Mitchell’s social media accounts, she said her office has not yet received any cases relating to abortions, but that if it did she would “seek guidance from the court before taking action.”

Ring thinks there is a larger question for courts to consider – whether either law is constitutional in Arizona.

“The judge (Johnson) did not decide the constitutionality,” he said. And, like people on both sides of the issue, Ring thinks the final decision will be made by voters as well as courts.

“I expect Planned Parenthood will file an action and I expect that the voters are energized by the decision that was made,” Ring said.

Haley Smilow HAIL-ee SMI-low (she/her/hers)
Sports Broadcast Reporter, Phoenix

Haley Smilow expects to graduate in May 2023 with a bachelor’s degree in sports journalism. Smilow, who is currently covering sports in Phoenix, is also interning with the Diamondbacks and has previously interned at the Phoenix Magazine, AZTV and Phoenix Rising.