PHOENIX — Attorney General Kris Mayes is making one last attempt to delay the enforcement of an 1864 Arizona law that outlaws all abortions except to save the life of the mother.
In a new filing, Mayes wants the Arizona Supreme Court to delay issuing its mandate — formal enactment of its April 9 ruling — for up to 90 days. She said that time will give her a chance to decide whether to seek review by the U.S. Supreme Court.
Under normal circumstances, this kind of case would not make its way into federal court.
That’s because the ruling the state court issued was based strictly on an interpretation of two potentially conflicting state laws, the 1864 statute and a 2022 measure that allows abortion until the 15th week of pregnancy. The state court, in a 4-2 ruling, said the older law trumps.
But Mayes is eyeing the fact the justices, in reaching their conclusion, cited another Arizona law, one that says that an unborn child at every stage of development has “all rights, privileges and immunities available to other persons, citizens and residents of this state,” subject only to federal constitutional restrictions and U.S. Supreme Court decisions.
Only thing is, Mayes said, U.S. District Court Judge Douglas Rayes in July 2022 declared that verbiage unconstitutionally vague and unenforceable. That federal court ruling may provide the legal entre for Mayes to ask the U.S. Supreme Court to review — and overturn — the decision of the state Supreme Court.
The filing comes as state senators are set to vote Wednesday on repeal of the 1864 statute. That same language already has been approved by the House.
Even if approved and signed by Gov. Katie Hobbs, the repeal could not take effect until 91 days after the current legislative session ends. And, at this point, there is no deadline for that to happen.
What makes that critical is that, without a further delay like the one Mayes is seeking, the Arizona Supreme Court ruling could become effective in late June. And Planned Parenthood Arizona has warned that could result in a “blackout” where no abortions could be performed until either the repeal becomes effective — sometime in August or September — or unless and until voters approve an initiative to put a right to abortion in the Arizona Constitution.
Even if voters approve an initiative on Nov. 5, nothing can happen until the results are certified. That is scheduled for Nov. 25.
All that leaves Mayes, whose office sided with Planned Parenthood in unsuccessfully urging the court to accept the 15-week law, trying to buy time.
The underlying case is simple.
State justices — four of the six who heard the case — acknowledged legislators approved a 15-week ban in 2022. That law, actually proposed by abortion foes, was in anticipation that the U.S. Supreme Court would uphold a similar limit enacted in Mississippi.
Instead, however, the nation;s high court overturned its precedent in Roe v. Wade, which had said women have a constitutional right to terminate a pregnancy. That 1973 ruling had allowed abortion in Arizona through fetal viability, generally considered between 22 and 24 weeks, with some options beyond that.
Based on that new Supreme Court decision, Mark Brnovich, who had been the state attorney general, got Pima County Superior Court Judge Kellie Johnson to rule the 1864 law, never repealed after the Roe decision, was again enforceable.
That brought all abortions to a halt until the state Court of Appeals disagreed, allowing the 15-week law to take effect. But that, in turn, was overruled by the April 9 state Supreme Court decision.
Last week the House voted 32-28 to repeal the old law; identical legislation is set for Senate debate Wednesday.
But that has left it to Mayes and her staff to find some way to keep the 15-week law alive for as long as possible. Hence, the request to the Arizona justices to delay the effect of their ruling.
The move is likely to get a fight from Alliance Defending Freedom.
That Christian law firm represents Dr. Eric Hazelrigg, medical director of Choices Pregnancy Center. He was given permission by courts to represent the interests of unborn children after Mayes, taking office in January 2023, had the Attorney General’s Office switch sides in the legal battle.
“Rather than pushing a pro-abortion agenda and pouring resources into promoting a procedure that takes the lives of the most vulnerable, our government officials should be doing everything they can to protect life,” said Jake Warner, senior counsel with ADF.
Mayes, for her part, argues that a delay in enforcing the 1864 law is merited. It comes down to how state justices reached their decision.
“The Arizona Supreme Court’s decision in the 1864 case relied on a statute that a federal court has enjoined as unconstitutionally vague,” she said in a prepared statement. “This raises serious federal questions under the Due Process and Supremacy Clauses” of the U.S. Constitution.
Assistant Attorney General Joshua Bendor, who is handling the legal filings, told the Arizona justices that evaluating whether to pursue U.S. Supreme Court decision “will take time.”
“So, too, will preparing the petition if the (Attorney General’s) Office elects to proceed with the application,” he wrote in the petition to the state justices.
All this surrounds a separate legal fight over a 2021 law that made it illegal for a doctor to perform an abortion knowing the sole reason it was sought by the mother was because of a fetal genetic abnormality. That was at a time when other abortions prior to fetal viability were legal.
The Center for Reproductive Rights, representing two doctors, filed suit, arguing they had a fear of being prosecuted. While the U.S. Supreme Court later ruled there was no constitutional right of women to terminate a pregnancy, the lawsuit remains unresolved.
In July 2022 — after the U.S. Supreme Court overturned Roe — U.S. District Court Judge Douglas Rayes specifically looked at that verbiage that grants an unborn child the “rights, privileges and immunities available to other persons.” He concluded that language was unenforceable as it gave no clue to doctors what they can — and cannot — do.
“It is about giving people fair notice of what the law means so they know in advance how to comply,” Rayes wrote. He called the measure “so vague that it makes it impossible for plaintiffs to do their work with fair notice of conduct that is forbidden or required, in violation of their procedural due process rights.”
Rayes’ injunction against enforcing that section of the law remains valid.
What makes that important, Mayes contends, is that Justice John Lopez specifically mentioned the section that Rayes enjoined in writing for the majority on April 9 why it believes the Legislature never intended for the 15-week law to supersede the 1864 statute. He said the law of the rights of the unborn “establishes the public policy of the state, provides additional interpretive guidance, and belies the notion that the
Legislature intended to create independent statutory authority for elective abortion.”
In his ruling, Lopez acknowledged the injunction issued by Rayes. But he said that action applies only to abortion care that is “otherwise permissible under Arizona law.”
“Thus, the injunction has no bearing on this court’s authority to consider (the law on the rights of the unborn) in interpreting the statutes before us or to determine whether abortion is permissible under Arizona law,” Lopez wrote.
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