Doctors are suing Arizona over confusion of conflicting abortion laws

A local abortion provider and Arizona’s largest medical association have sued the state, demanding the courts clarify the legality of abortion in Arizona following the overturning of Roe v. Wade earlier this year. 

The Arizona chapter of the American Civil Liberties Union filed the lawsuit Tuesday on behalf of Dr. Paul Isaacson, who runs an abortion clinic in Phoenix, and the Arizona Medical Association, which represents more than 4,000 health providers and doctors in the state. The lawsuit argues that nearly 50 years of laws enacted since a near-total abortion ban was written in 1864 — and recently allowed to go into effect by a trial court judge — create confusion. 

The best way to resolve the matter, attorneys for Isaacson and the AMA argue, is to allow abortion to remain accessible — and highly regulated. 

Background

Earlier this year, the Supreme Court overturned Roe v. Wade, voiding the constitutional right to abortion that was recognized in 1973. Republican officials scrambled to enact tighter abortion restrictions across the country. 

But in Arizona, the debate centered on whether a sweeping ban from 1864 or a limited 15-week ban signed into law this year should be the law of the land. Neither of the two laws include an exception for pregnancies involving rape or incest, only for cases necessary to save the life of the woman. 

On Sept. 23, Pima County Superior Court Judge Kellie Johnson ruled in a case brought by Attorney General Mark Brnovich that a 1973 injunction holding back the Civil War-era ban was no longer valid, leaving it on the books. The 15-week ban signed into law by Gov. Doug Ducey went into effect on Sept. 24, and Ducey has repeatedly asserted that law should take precedent. 

These two conflicting stances confused providers and women across the Grand Canyon state, and forced clinics to shutdown abortion services for fear of incurring prison time; the 1864 law carries with it a 2 to 5 year sentence for doctors who violate it. 

Johnson refused to reconcile the two bans, directing those who wanted clarity to file other lawsuits or petition for declaratory relief, a process by which a court resolves legal uncertainties. The new lawsuit from the ACLU of Arizona, filed in the Arizona Superior Court, seeks to do the latter. 

Arguments 

The lawsuit argues that it’s been nearly 50 years since the 1864 ban was initially blocked by an injunction set in place when Roe was first passed in 1973 — and a wave of laws regulating abortion care since then directly conflict with the territorial-era ban and recognize abortion as a lawful medical procedure in the state. Among them are laws that regulate the licensure of abortion clincis and who can provide surgical or medication procedures. 

A key argument forwarded by abortion foes is that the new 15-week law has language that explicitly says it doesn’t repeal previous laws, which means the 1864 ban can supersede it. The ACLU brief notes that this can also be applied to the laws governing abortion providers. 

Nullifying those laws, the brief adds, not only goes directly against the wishes of previous elected representatives, but also violates the intent of the most recent legislature, which passed the 15-week ban when it could have instead enacted more stringent laws — or even a new total ban. Clearly, the attorneys argued, the legislature intended to legalize some level of abortions services. 

“Harmonizing the Territorial Law with the 15-Week Law and the other legislative enactments…in a manner that permits physicians to provide abortion care would not only be consistent with the legislative intent…it is also the only interpretation that avoids rendering the 15-Week Law and the other more recent abortion statutes and regulations entirely “meaningless, insignificant, or void,” the attorneys wrote. 

The confusion caused by state officials must be resolved by the court, they argued. Ducey maintains that the 15-week ban is the law of the land, while Attorney General Brnovich maintains the 1864 law must be enforced. These conflicting positions have caused uncertainty among county attorneys who would prosecute violations of the law, including Maricopa County Attorney Rachel Mitchell, who has said she would need further guidance from the courts before deciding whether to prosecute health care providers. 

“It is unclear from both the face of the laws and the many inconsistent statements from public officials which law governs in Arizona. An actual and justiciable controversy exists over whether Arizona physicians and providers like Dr. Isaacson and ArMA members may perform abortions under Arizona’s complex regulatory scheme that governs abortion care in this state…without risking criminal prosecution for violating the Territorial Law,” the attorneys wrote. 

Abortion advocates call for clarity, reinstated access

The Center for Reproductive Rights said the move is a necessary step in determining the future of abortion access in the state and clarifying the legal implications for providers. 

“The state of Arizona has caused complete chaos by seeking to enforce clashing abortion bans, including one of the most extreme in the country.This has put Arizonans in an untenable situation. Providers and patients have no sense of what the law is and whether they are breaking it. The court must restore abortion access and put an end to this legal and public health crisis,” said Nancy Northup, president and CEO of the Center for Reproductive Rights. 

Jared Keenan, the legal director for ACLU Arizona, said the organization is committed to ensuring that clarity is provided for Arizonans, and called on voters to use the upcoming midterm elections to let politicians know where they stand. 

Keenan added that a near-total ban on abortion is out of step with general sentiment, and politicians should be reminded of that. A February survey found that 90% of Arizonans were opposed to political interference in their family planning decisions. 

“Politicians are following their own extremist agenda and ignoring the devastating reality pregnant people and providers now face. While we fight in court to seek clarity around the abortion laws, voters have an opportunity this November to send a clear message to lawmakers and elected officials that they need to secure abortion access,” Keenan said.