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Arizona doctors can't be prosecuted under 1864 abortion ban, court rules

KPNX-TV Phoenix 12/30/2022 12News, Brahm Resnik

Editor's note: The above video aired during a previous broadcast.

The Arizona Court of Appeals ruled Friday that Arizona doctors can't be prosecuted under the state's 1864 near-total abortion ban, which was reactivated after the U.S. Supreme Court in June struck down a woman's right to an abortion.

The three-judge Appeals Court unanimously ruled that the state's newest anti-abortion statute, which bans the procedure after 15 weeks of pregnancy, takes precedence over the older law.

"The question at the core of this appeal is whether a licensed physician who performs an elective abortion in conformity with more recent statutes... is nevertheless subject to prosecution under (the 1864 law)," the ruling says. 

The ruling goes on: Because existing law "permits physicians to perform elective abortions under certain circumstances, the answer is no."

The ruling marks a victory for Planned Parenthood of Arizona, the state's largest provider of reproductive services, and Pima County Attorney Laura Conover.

Planned Parenthood and Pima County appealed a lower-court ruling in September August that allowed the Civil War-era ban to take effect.

The ban had been suspended since Roe vs Wade was first decided in 1973.

The appellate ruling comes just days before a change in control of the Arizona Attorney General's Office, which had asked the lower court to restore the 158-year-old abortion ban. 

Friday was Republican Attorney General Mark Brnovich's last work day, before Democrat Kris Mayes is sworn in Monday as the new AG. 

Brnovich urged the court to lift the injunction on the 1864 law, but agreed to not enforce the ban until 2023.

Brnovich hasn't responded to the appellate court ruling. 

As AG, Mayes will have to decide whether to drop the appeal brought by her predecessor. 

Mayes said she agrees with Friday's ruling but noted how it didn't address the question of whether the state's 1864 ban violates the Arizona Constitution.

"That will be a question for another day. As your next Attorney General, I vow to continue to fight for reproductive freedom," Mayes said in a statement.

Mayes has previously said she "wouldn't prosecute Arizonans who get abortions," even though that's not necessarily the attorney general's job. She later clarified that if the attorney general's office ever had the opportunity to prosecute a woman or doctor in an abortion case, her office wouldn't do so.

Both the 1864 near-total ban and Arizona's newer 15-week ban, passed in March, allow some exceptions in order to save a mother's life. 

Neither law provides exceptions in cases of rape or incest.

Democratic Gov.-elect Katie Hobbs said in a statement: 

“This abortion ban has no place in Arizona: it puts the government in charge of women’s private health care decisions, with deadly consequences. It cruelly offers no exceptions for victims of rape or incest. And it criminalizes doctors and health care providers simply trying to do their jobs and protect their patients.

“In November, the people of Arizona made clear that they believe in women’s fundamental rights. As governor, I will do everything in my power to ensure that women can exercise their constitutional rights, and will continue to fight to restore reproductive freedom in our state.”


PREVIOUS COVERAGE: Arizona judge: State can enforce near-total abortion ban

U.S. Rep. Ruben Gallego, D-Arizona, said Friday's abortion ruling was "a blow to the extremist legacy of Attorney General Brnovich."

"But make no mistake, this ruling is not a comprehensive solution, and I will do everything I can on the federal level to support the right to abortion," Gallego said in a statement.

Arizona abortion providers have been on a roller coaster since June when the U.S. Supreme Court overturned the decision that guaranteed women a constitutional right to an abortion. 

At first, providers shut down operations, then re-opened, then closed again. Clinics in the Tucson area reopened on Oct. 7 when a judge granted Planned Parenthood a stay after the organization filed the appeal.

RELATED: Democratic candidate for Arizona AG speaks on abortion, her 'independence'

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