Upon Roe v. Wade being overturned with the Dobbs v. Jackson ruling in June 2022, multiple states had pre-Roe laws go back into effect.
These pre-Roe laws are exactly what the description says - laws that states had in place before Roe v. Wade was decided in 1973. These laws became inactive upon the 1973 Roe ruling but were never actually repealed.
In fact, some states passed new legislation limiting abortion in direct conflict with old laws still on the books that once again became enforceable upon the Dobbs ruling.
Therefore, a new legal question arose - Does an older abortion law automatically take precedence over a new law, or does the new law supersede any previous laws?
This question recently played out in Arizona courts.
The case of Arizona
After the Dobbs decision, an 1864 abortion law, pre-dating even Arizona statehood, making abortion at any point in pregnancy illegal with exception of necessity to save the mother’s life, was set to go back into effect, but was blocked by court challenges.
The territory-era law reads:
“A person who provides, supplies or administers to a pregnant woman, or procures such woman to take any medicine, drugs or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless it is necessary to save her life, shall be punished by imprisonment in the state prison for not less than two years nor more than five years.”
Additionally, former Arizona Governor Doug Ducey (R) signed SB 1164 into law in March 2022, prohibiting abortion after 15 weeks except in cases of a medical emergency, which became enforceable upon the Dobbs decision and went into effect in September 2022.
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Ducey initially argued his 15-week law superseded the 1864 law adopted by the 1st Arizona Territorial Legislature. However, Arizona Attorney General Mark Brnovich (R) held firm that the first law should take precedence.
The decision
On Friday, Dec. 30, 2022, the Arizona Court of Appeals settled this argument between pro-life advocates and abortion supporters alike, releasing a decision in Planned Parenthood v. Brnovich.
The decision determined the 1894 law, which was codified in 1901 as § 13-3603, should not be repealed, but rather “harmonized” and read together with the current law.
In an explanation as to how the two laws could coexist, the opinion states:
“Arizona’s original statute outlawing most abortions, § 13-3603, itself contains an exception permitting abortions when necessary to save the life of the mother. 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.”
It further says, “Our original law continues to outlaw abortions under all circumstances not permitted by that subsequent legislation.”
The ruling also clarifies:
“The question at the core of this appeal is whether a licensed physician who performs an elective abortion in conformity with more recent statutes in Title 36 is nevertheless subject to prosecution under § 13-3603. Because Title 36 permits physicians to perform elective abortions under certain circumstances, the answer is no.”
Tweet This: Older, pre-Roe pro-life laws should be read in harmony with later abortion regulations, and AZ appeals court recently ruled.
The current law
So, as the law stands now in Arizona, abortion is only legal when performed by a licensed physician up to 15 weeks gestation, except in cases of a medical emergency, which was expanded in the 15-week law to be defined as “a condition that, on the basis of the physician’s good faith clinical judgment as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create risk of substantial and irreversible impairment of a major bodily function.”
However, if anyone aside from a licensed physician performs an abortion even in the aforementioned circumstances, they are still subject to the prison sentence of “not less than two years nor more than five years,” instituted by the pre-Roe law.
In response to the decision, Arizona Attorney General Mark Brnovich took to Twitter to show his enthusiasm.
“A Pima County judge lifted an injunction that was placed on AZ’s abortion statute,” Brnovich tweeted. “We applaud the court for upholding the will of the legislature and providing clarity and uniformity on this important issue. I have and will continue to protect the most vulnerable Arizonans.”
The impact
The decision handed down by the Arizona Court of Appeals could be used as a blueprint for how other states decide to handle multiple abortion laws. It should also inspire pro-life legislators to thoroughly review pre-Roe laws in their states before drafting new bills that could accidentally lay the groundwork for more lax abortion laws than ones currently still on the books.
Additionally, according to SBA Pro-life America’s Pro-Life Laws Tracker, the Dec. 30 Arizona decision will still impact approximately 13,273 abortions in in the state, saving and changing tens of thousands of lives.
