However, the court didn’t repeal the territory-era law which outright bans abortions unless the woman’s life is in danger, finding that law harmonized with the more recent statute enacted in May that allows abortions up to 15 weeks.
Chief Judge Garye Vásquez authored the opinion, in which Judge Peter Swann concurred, and Presiding Judge Eckerstrom specially concurred.
Vásquez said the court’s “resolution of this issue clarifies the statutes can be reconciled such that physicians are permitted to perform abortions in compliance with Title 36 and not be prosecuted under [the old law.]”
While the court agreed that the two statutes can be reconciled, it disagreed that there existed a conflict between the two that “must result in the repeal of either, implicit or otherwise.”
“The statutes, read together, make clear that physicians are permitted to perform abortions as regulated by Title 36 regardless of [ARS] 13-3603,” Vásquez wrote (pdf). “Thus, physicians who perform abortions in compliance with Title 36 are not subject to prosecution under [ARS] 13-3603.”
Vásquez said the court doesn’t construe statutes in isolation. While the original law criminalizes most abortions including by doctors, Vásquez noted that in enacting the 15-week law, the legislature made its intent clear: “to restrict the practice of nontherapeutic or elective abortion to the period up to fifteen weeks of gestation.”
The original statute was an almost outright ban, while the new statute directs that a doctor can’t perform an abortion if the gestational age is over 15 weeks absent a medical emergency.
The newer law also includes regulations restricting the abortion of viable fetuses and includes parental consent provision for juveniles along with numerous reporting requirements.
Any doctor who violates the new law would face a class six felony charge. Under the original law, the doctor would face between two and five years in prison.
The 1901 statute was the law of the land in Arizona until 1973 when the U.S. Supreme Court legalized abortion nationwide. But once this was overturned in May, Arizona Attorney General Mark Brnovich vowed to ask the court to vacate the injunction and restore the outright ban.
Planned Parenthood argued that lifting the injunction on the outright ban could conflict with the law the Arizona legislature enacted in May. The abortion provider wanted the courts to harmonize all statutes enacted since 1973 with the original territory-era law.
Presiding Judge Peter J.Eckerstrom wrote in his specially concurring opinion that the original law can be read side by side with the newer one.
“Arizona’s original statute outlawing most abortions … itself contains an exception permitting abortions when necessary to save the life of the mother,” Eckerstrom wrote. “Arizona’s more specific subsequent laws, including the most recent 15-week law, may be read in harmony with that provision, by understanding them as merely adding further exceptions to the general prohibition on abortion.”
He added: “Under this construction, our contemporary statutes permit physicians to perform elective abortions up to fifteen weeks but only in conformity with a host of exacting regulations. Our original law continues to outlaw abortions under all circumstances not permitted by that subsequent legislation.”