Doctors Who Perform Abortions Cannot Be Prosecuted Under Arizona Law

By Jacques Billeaud | Associated Press

PHOENIX — An Arizona court has ruled that abortion doctors cannot be prosecuted under a pre-statehood law that criminalized nearly all abortions but was banned for decades.

But the Arizona Court of Appeals refused Friday to strike down the 1864 law, which carries a sentence of two to five years in prison for anyone who assists in an abortion and makes no exceptions for rape or incest.

Still, the court said that doctors cannot be prosecuted for performing abortions because other Arizona laws passed over the years allow them to perform the procedure, though non-physicians are still subject to charges under the law. previous law.

“The statutes, read together, make it clear that physicians may perform abortions as regulated” by other abortion laws, the appeals court wrote.

The pre-statehood law, which allows abortions only if the patient’s life is in danger, was blocked shortly after the US Supreme Court’s Roe v. Wade Act of 1973 that guarantees women the constitutional right to abortion.

But after the Supreme Court reversed the landmark decision in June, Attorney General Mark Brnovich asked a state judge to allow implementation of the law.

The Arizona Court of Appeals said it was not viewing the pre-statehood law in isolation from other state abortion laws, explaining that “the legislature has created a complex regulatory framework to achieve its intent to restrict, but not eliminate, elective abortions. ”

In a statement, Brittany Fonteno, president and CEO of Planned Parenthood Arizona, said the decision means a state law limiting abortions to 15 weeks into a pregnancy will be upheld.

“Let me be very clear that today is a good day,” Fonteno said. “The Arizona Court of Appeals has provided us with the clarity that Planned Parenthood Arizona has been seeking for months: when provided by licensed physicians in accordance with other Arizona laws and regulations, abortion up to 15 weeks will remain legal.”

The appeals court rejected Brnovich’s contention that doctors could be prosecuted under pre-statehood law, saying the attorney general’s argument ignores the Legislature’s intent to regulate but not eliminate abortions and violates due process by promoting arbitrary application.

“Brnovich’s interpretation would not only invite arbitrary application, but would virtually require it,” the appeals court wrote.

The attorney general’s office did not immediately respond to a request for comment on the decision, which was published Friday afternoon.

Abortion providers stopped providing the procedure in the state after Roe was struck down, restarted it in mid-July after a court blocked a “personality” law that gave legal rights to unborn children, and they were stopped again when a Tucson judge allowed the 1864 law to be enforced.

Planned Parenthood Arizona, the state’s largest abortion provider, has restarted statewide abortion care again after Brnovich’s office agreed in another lawsuit not to enforce the old law until at least next year.

A Phoenix doctor who runs a clinic that offers abortions and the Arizona Medical Association also filed a separate lawsuit seeking to block the land-era law, arguing that laws enacted by the Legislature after Roe’s decision should take precedence. and abortions should be allowed. up to 15 weeks pregnant.

Brnovich tried to stay that lawsuit until the Court of Appeals decides Planned Parenthood’s case. In an agreement with the abortion doctor and the medical association, he said he would not enforce the old law until at least 45 days after the final decision in the original case.

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