The future of abortion access in Arizona is now in the hands of the state’s Supreme Court. Justices heard oral arguments Tuesday in a case that will determine if abortions will be allowed up to 15 weeks in Arizona, or banned almost entirely.
Since Roe v. Wade was overturned, Arizona has grappled with which of two abortion laws to follow. Doctors for about a year have been able to provide abortions up to 15 weeks, based on a lower court’s interpretation of the laws.
Hear Howard Fischer of Capitol Media Services discuss the arguments with host Lauren Gilger on The Show
Territorial law versus 15-week law
But intervenors in the case — Dr. Eric Hazelrigg, medical director of a group of Phoenix-area anti-abortion pregnancy centers, and Yavapai County Attorney Dennis McGrane — want that decision reversed. They want to see a more restrictive law, which dates back to Arizona's first territorial legislature in 1864, enforced.
Attorney Jacob Warner with Alliance Defending Freedom, representing Hazelrigg and McGrane, argued lawmakers never wanted to repeal Arizona’s near-total abortion ban, known as 13-3603, when they wrote the 15-week law in 2022.
“The Legislature has given express direction. The pre-Roe law, 13-3603, is the winner if we have to choose," Warner told the justices.
Vice Chief Justice Ann Scott Timmer asked Warner why lawmakers would not have said that more directly.
“Could they have simply said, or been a little clearer for all of us, and said that if Roe v. Wade is overruled, in that case 13-3603 will take place? Or, in the next legislative session after the Dobbs decision simply do just that?” Timmer said.
Decision could take months
Andy Gaona, an attorney for Planned Parenthood Arizona, focused his argument on that point. He told the justices the reason this issue is now before the court is that lawmakers were not clear.
“What the intervenors are asking you to do and what the legislative leaders who filed an amicus brief are asking you to do is to impose through an opinion that which they could not secure the votes in the Legislature for," Gaona said.
Justice Clint Bolick said the language of the 15-week law may be problematic, though. He pointed out a piece of the 15-week law which says it is not meant to make abortions lawful.
“It also specifically references the territorial law and says that it’s not repealed by implication or otherwise. What does that all mean?" Bolick asked Gaona.
It could be weeks or months before the justices announce their decision in the case.
Whatever they decide, abortion advocates are already pursuing a 2024 ballot measure that would expand abortion access far beyond either of the laws being considered.
