PHOENIX — An Arizona appeals court on Friday ruled abortions performed in the state by licensed physicians are legal up to 15 weeks of gestation despite a 19th-century, near-total abortion ban.
The ruling from the three-member panel from the southern division of the Arizona Court of Appeals clears up months of uncertainty over the legality of abortion in Arizona by saying physicians who perform abortions under a new law that permits them up to 15 weeks of gestation are not subject to prosecution under the territorial-era near-total abortion ban.
Abortion law in the state had been in flux following the U.S. Supreme Court’s decision this summer to eliminate Roe v. Wade, the constitutional right to an abortion, and leave the issue up to states, though both medical and surgical abortions have been legally occurring in Arizona up until 15 weeks of gestation since October, pending the appeals court decision.
“Today’s decision provides the clarity that Planned Parenthood Arizona has been seeking for months: When provided by licensed physicians in compliance with Arizona’s other laws and regulations, abortion through 15 weeks will remain legal,” Planned Parenthood Arizona said in a statement.
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At issue in the case were two abortion laws passed 158 years apart that appeared to be in conflict: a 19th century, Civil War-era near-total ban on abortion that outgoing Republican Attorney General Mark Brnovich wanted to uphold and a more recent law passed by the Arizona Legislature that bans abortions after 15 weeks of gestation, “absent a medical emergency,” with no exceptions for rape or incest. The law, which took effect in September, said physicians who violate the 15-week law would face a class six felony under Arizona law.
Before the ban on abortions after 15 weeks, abortions had been legal in Arizona up until viability, typically 23 weeks or 24 weeks.
In the ruling, the appeals court declined to repeal the 1864 law, which carries a sentence of two to five years in prison for anyone who assists in an abortion and provides no exceptions for rape or incest.
Still, the court said doctors can’t be prosecuted for performing abortions because other Arizona laws passed over the years allow them to perform the procedure, though non-doctors are still subject to be charged under the old law.
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“The statutes, read together, make clear that physicians are permitted to perform abortions as regulated” by other abortion laws, the appeals court wrote.
“We are relieved for all of Arizona that the Court of Appeals ruled in favor of Planned Parenthood and our office,” Pima County Attorney Laura Conover said in a statement Friday. “The ruling prevents an effort to go back to a mid-19th century, near-total ban that would not end the need for or choice of abortion. It would have only made it far less safe for those seeking medical procedures.”
Conover’s office had sided with Planned Parenthood in the Pima County Superior Court case.
“What a dramatic 11th-hour turnabout for reproductive health,” Conover’s statement said.
Contributing: Ray Stern; Associated Press