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Appeals Court hears arguments over the future of abortion access in Arizona

A three-judge panel with the Arizona Court of Appeals is considering the future of abortion access in the state. The judges heard oral arguments Wednesday over whether the state should enforce a new law that allows abortions early in pregnancy, or an older law that bans the procedure except to save a the life of the pregnant person.

After the U.S. Supreme Court overturned Roe v. Wade in June, an Arizona Superior Court judge in September said the state’s  near-total abortion ban that dates to the Civil War era could be enforced.

The law is temporarily blocked while Planned Parenthood and others appeal that decision, but it could eventually go back into effect. It makes performing an abortion a felony and punishes abortion providers with two to five years in prison.

In a Tucson courtroom Wednesday, Planned Parenthood Federation of America attorney Sarah Mac Dougall argued the lower court should have clarified how the old law, known as  A.R.S. 13-3603, fits in with decades of other legislation related to abortion in Arizona.

“The trial court cannot effectively begin an analysis of the changes in legal circumstances and then stop halfway,” Mac Dougall said. “The trial court’s decision effectively took a red pen to those other dozens of laws and struck them out in favor of 13-3603.”

Planned Parenthood wants the court to keep in place a 2022 law that allows abortions up to 15 weeks’ gestation. Mac Dougall argues that it’s the court’s duty to “harmonize” all of the conflicting laws that are on the books.

But the judges raised questions to Mac Dougall about how far the court can really go in clarifying the laws.

“Are we harmonizing, or are we explicitly repealing 13-3603?” Judge Garye Vasquez asked.

Attorney Michael Catlett, representing the Arizona Attorney General’s Office, argued that the newer laws Planned Parenthood wants the court to consider should not take precedence over the old law.

“The 15-week law does mention 13-3603. It says it’s not repealing it implicitly or otherwise, and that the 15-week law is not repealing any other law,” Catlett said.

The judges repeatedly asked Catlett why state lawmakers, when they passed the 15-week law last spring, would not have specified that they wanted the near-total ban to go back into effect if Roe v. Wade were to be overturned, if that had been their intent.

“Isn’t it true that if the Legislature intended that, that there was a much, much clearer way to convey that that wouldn’t have us all arguing about what it means in that regard?” Judge Peter Eckerstorm said. “And if that was your main goal, wouldn’t you make that crystal-clear?”

The judges did not indicate when they might reach a decision in the case.

If the court were to allow the near-total abortion ban to go back into effect, the Arizona Attorney General’s Office has  previously agreed not to enforce the law for 45 days following the decision.

Whatever these judges decide, either side is likely to appeal the decision, which could eventually put the case before the Arizona Supreme Court.

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Katherine Davis-Young is a senior field correspondent. She has produced work for NPR, New England Public Radio, Southern California Public Radio, PRI's The World, Washington Post, Reuters and more.She has a master’s degree in radio journalism from the USC Annenberg School of Journalism.She lives in central Phoenix with her husband, two daughters, and ill-behaved cat and dog. Her side-passions include photography, crosswords and hot sauce.