By: Karen Owens and Marki Stewart, Coppersmith Brockelman PLC
On December 30, 2022, Division Two of the Arizona Court of Appeals ruled in Planned Parenthood v. Brnovich[1] that “[l]icensed physicians who perform abortions in compliance with [A.R.S.] Title 36 are not subject to prosecution under [A.R.S.] § 13-3603.”[2] If this ruling stands, it will have the effect of making elective abortion legal in Arizona for the first 15 weeks of pregnancy. In the spring of 2022, the Arizona legislature enacted the 15-week limitation (the “15-week law”).[3] But in June 2022, the U.S. Supreme Court issued Dobbs v. Jackson Women’s Healthcare Organization,[4] which overruled Roe v. Wade.[5] Dobbs raised the question of whether the 15-week law or a statute on the books since territorial days (“Territorial Law”) governed the right to abortion in Arizona. The Court of Appeals ruling in Brnovich this past December answered that question by harmonizing the two statutes using statutory interpretation principles. At present, based on a stay of enforcement in a separate case (discussed below), the current abortion provisions in Title 36 of the Arizona Revised Code, including the 15-week law, are in effect, not the Territorial Law.
This blog post takes a deeper dive into the history and status of the Brnovich case.
1. The Territorial Law and 1973 Injunction in Nelson
The Arizona law governing abortion prior to Roe can be traced back to 1864. This Territorial Law is currently codified in the Arizona criminal code at A.R.S. § 13-3603.[6] It states:
The Territorial Law is big and broad. It covers both surgical and medication abortions and allows abortion procedures only when necessary to save a woman’s life. It contains no exceptions for threats to a woman’s health, rape or incest. Felony criminal penalties fall on persons who perform or procure abortion services or medications.
In 1971, two years before Roe, the Superior Court in Tucson upheld a challenge to the Territorial Law, but in early 1973, the Arizona Court of Appeals reversed in Nelson v. Planned Parenthood Center of Tucson, Inc.[7] Ten days after the reversal, in January 1973, the U.S. Supreme Court decided Roe v. Wade.[8] The Court of Appeals then enjoined enforcement of the Territorial Law – but that statute remained on the books, dormant.[9]
2. The 15-Week Law: Senate Bill 1164
In Arizona as in many states, the Legislature passed a number of provisions that restricted abortion services under Roe. These statutes addressed abortion from many angles; courts struck some of the statutes down and allowed others to stand. Laws addressing clinic regulation, resuscitation of fetuses born with a heartbeat after attempted termination procedures, reporting requirements and the like withstood scrutiny.[10] In the spring of 2022, the Legislature passed Senate Bill 1164, which restricted the right to elective abortion services to a maximum of 15 weeks of fetal gestation.
Senate Bill 1164 is codified at A.R.S. §§ 36-2321-26. Relevant to this post, the law provides: “[e]xcept in a medical emergency, a physician may not perform, induce or attempt to perform or induce an abortion” after 15 weeks gestational age.[11] The “Construction” section of S.B. 1164, however, states that the bill did not “[r]epeal, by implication or otherwise, section 13-3603, Arizona Revised Statutes, or any other applicable state law regulating or restricting abortion.” Nevertheless, after Governor Ducey signed S.B. 1164 into law, he announced that “the law of the land today in Arizona is the 15-weeks’ law . . . and that will remain the law,” even if the Supreme Court decides to overrule Roe v. Wade.[12]
3. Dobbs Holding
As is well known, on June 24, 2022, the United States Supreme Court in Dobbs reversed its 50-year old ruling in Roe. The Court declared that the United States Constitution does not, after all, provide a right to abortion and sent the regulation of abortion services back to the individual states. The Supreme Court specifically upheld a Mississippi law that was virtually identical to the 15-week law passed in Arizona in early 2022.
4. The Conundrum After Dobbs; Reopening Nelson
Dobbs created a conundrum in Arizona. The Territorial Law which would criminalize almost any abortion remained in law, although enjoined. The 2022 law, which would become effective on September 24, 2022, would allow elective abortions up to 15 weeks. The two statutes seemed unquestionably to be inconsistent. This left providers and patients without guidance. Because of the criminal penalties in connection with the Territorial Law, it posed potentially disastrous consequences if providers got it wrong.
Within weeks after the publication of Dobbs, then-Arizona Attorney General Brnovich filed a motion for Rule 60(b)(5) relief to lift the 1973 injunction in Nelson against enforcement of the Territorial Law. Planned Parenthood Arizona and the Pima County Attorney, plaintiffs in the Nelson case, opposed the motion on September 28, 2022.[13] The parties were updated so that then-Attorney General Brnovich was the defendant. Eric Hazelrigg, M.D., an ObGyn representing an anti-choice group called Alliance Defending Freedom, intervened as guardian ad litem for “unborn children.”
The Plaintiffs argued that the court has a duty to harmonize all the laws regarding abortion as they exist today. As they had to, Plaintiffs accepted that Dobbs had overturned Roe, but argued that the court must consider both the decisional law and statutory laws passed since 1973 in determining whether the Nelson injunction should be vacated or modified. They argued that the Attorney General, as the party seeking dissolution of the injunction, bore the burden of establishing a significant change in facts or law warranting revision of the injunction because applying it prospectively is no longer equitable.
On September 23, 2022, the trial court ruled that the Territorial Law prevailed and lifted the 1973 Nelson injunction. The court refused to address the interaction between the Territorial Law and Arizona statutes enacted since Roe on the basis that doing so would be “procedurally improper” under Rule 60. The trial court denied Planned Parenthood’s request for a stay pending appeal on September 30. Planned Parenthood then sought and obtained an emergency stay in the Court of Appeals.[14]
5. The Arizona Court of Appeals decision in Brnovich
On December 30, 2022, Division II of the Arizona Court of Appeals held that doctors performing abortions in conformity with the modern abortion provisions in Title 36 would not be subject to the Territorial Law.
The Court of Appeals first addressed the trial court’s refusal to evaluate the changes in Arizona abortion law under Roe. The Court pointed out that Rule 60(b)(5) called for judicial review of whether the “legal landscape has changed,” including both statutory and case law changes.[15] The Court held that the trial court had abused its discretion by not considering the changes in the “legal landscape” since the 1973 Nelson injunction, including the comprehensive scheme of limitations on abortion passed by the Legislature over the years.
The Court of Appeals then turned to the central question, what to do about the apparent contradictions between the Territorial Law and the modern statutory law in Title 36. Applying statutory interpretation principles, the Court concluded that the Legislature’s intent in the post-Roe statutes, including the 15-week law, demonstrated the Legislature’s “intent to restrict – but not to eliminate – elective abortions.”[16] The Court noted that applying the Territorial Law restrictions to physicians who perform abortions in compliance with the Title 36 provisions would render those provisions all but meaningless.[17] The Court also explained that the Attorney General’s interpretation would create uncertainty for physicians in violation of due process.[18] Ultimately, the Court’s analysis harmonized the Territorial Law and modern Title 36 provisions in accordance with what it concluded was legislative intent. Judge Eckerstrom’s concurring opinion emphasized this point, stating that the Court’s decision “best complies with our legislature’s express instructions that we give all existing abortion regulations vitality: that we impliedly repeal no provisions, old or new.”[19]
6. Next Steps: Stay of Enforcement of the Territorial Law While the Case is Pending
As of February 12, 2023, no petition for review to the Arizona Supreme Court has been submitted. The defendant, Mark Brnovich, is no longer Attorney General. His successor, Attorney General Kris Mayes, has declared that she will not challenge the appellate ruling.[20] The guardian ad litem intervenor, however, has sought and obtained an extension of time in which to petition for review until March 1. Accordingly, we should know very soon whether the Arizona Supreme Court will have to decide whether to review the matter.
For now, any enforcement of the Territorial Law has been stayed by agreement in a separate case, Isaacson v. State.[21] Doctors and the Arizona Medical Association filed that lawsuit in 2022 seeking clarification of the conflicting laws governing physicians who provide abortion services. After the Court of Appeals stayed enforcement of the Territorial Law pending appeal in Brnovich, the parties in Isaacson agreed to stay proceedings in that case pending resolution of Brnovich. The parties also agreed that unless the court ordered otherwise, the State would not attempt to enforce the Territorial Law until 45 days after the issuance of a final mandate by the Arizona Supreme Court, if any. The stay of enforcement included an agreement not to prosecute retroactively for conduct occurring during the stay period.
7. Status of Brnovich Right Now
Unless there is a petition for review to the Arizona Supreme Court in Brnovich, the Supreme Court takes review of the case, and the Supreme Court overturns the Court of Appeals decision, elective abortion remains legal in Arizona until “the probable gestational age of the unborn human being has been determined to be greater than fifteen weeks.”[22] The question of the legality of abortion services over the long term is not yet firmly settled.
[1] No. 2 CA-CV 2022-0116 (Ariz. Ct. App. Dec. 30, 2022), available at https://www.appeals2.az.gov/Decisions/CV20220116Opinion.pdf.
[2] See id.
[3] Senate Bill 1164. Before that time, the right to elective abortion extended to approximately 24 weeks.
[4] 597 U.S. —, 142 S. Ct. 2228 (2022).
[5] 410 U.S. 113 (1973).
[6] In 1973, the abortion law appeared at A.R.S. § 13-211.
[7] 19 Ariz. App. 142, 150 (1973).
[8] Note 5, supra.
[9] The statutes that criminalized soliciting abortion and advertising abortion and contraception were enjoined in 1973 but are not at issue today. The solicitation statute, A.R.S. § 13-3604, has been repealed, and the Attorney General did not seek to vacate the injunction as to the advertising provision, A.R.S. § 13-3605.
[10] See Planned Parenthood Arizona’s Response to Defendants’ Rule 60(b) Motion for Relief from Judgment, filed July 20, 2022 in Brnovich for a list of the modern abortion statutes. Generally speaking, nearly all the modern statutes are in Title 36.
[11] S.B. 1164, 55th Leg., 2nd Reg. Sess. (Ariz. 2022), codified at A.R.S. § 36-2322.
[12] Howard Fischer, Arizona Gov. Ducey: abortion illegal after 15 weeks, KAWC (April 24, 2022), https://www.kawc.org/new/2022-04-24/arizona-gov-ducey-abortion-illegal-after-15-weeks.
[13] CA-CV 2022-0116. Full disclosure: Andrew Gaona of Coppersmith Brockelman represents Planned Parenthood Arizona in that case.
[14] Planned Parenthood v. Brnovich (2 CA-CV 2022-0116). The three-judge panel consisted of Chief Judge Vasquez, who wrote the decision, Judge Swann (ret.), and Presiding Judge Eckerstrom.
[15] Brnovich, slip op. at 5, quoting Agostini v. Felton, 521 U.S. 203, 216 (1997).
[16] Brnovich, slip op. at 8.
[17] Id., slip op. at 9.
[18] Id.
[19] Id., slip op. at 14.
[20] https://kjzz.org/content/1835062/arizona-attorney-general-kris-mayes-will-not-challenge-appellate-ruling-territorial
[21] CV2022-013091 (Maricopa County Superior Court).
[22] A.R.S. § 36-2322(B).