ARIZONA

As confusion over abortion reigns in Arizona, medical association, doctor sue to restart procedure

Ray Stern
Arizona Republic

Corrections & Clarifications: A previous version of this article misstated the name of the medical association that filed the lawsuit.

An Arizona abortion doctor and the Arizona Medical Association have filed a lawsuit seeking to neutralize the state's territorial-era anti-abortion law and allow physicians to restart the procedure in the state.

The American Civil Liberties Union of Arizona and Perkins Coie LLP law firm represent the plaintiffs. Maricopa County Superior Court Judge Joseph Mikitish was assigned to the case and set a hearing for Oct. 11.

Dr. Paul Isaacson, who provides abortions, and the groups want more than "clarity" on the multitude of abortion laws now on the books, said ACLU attorney Jared Keenan. They want it made clear that physicians can still perform abortions legally because the laws can coexist, he said.

Isaacson's medical practice website currently refers patients seeking abortions to his Las Vegas clinic.

All Arizona providers have stopped abortion services after the U.S. Supreme Court's action overturning Roe v. Wade in June led to two rulings in recent weeks that revived the territorial ban the state had enforced until 1973. The ban, codified in 1864 with the Arizona Territory's first statues, mandates two-to-five years in prison for anyone who helps facilitate an abortion.

Following a request by state Attorney General Mark Brnovich, a Pima County Superior Court judge lifted the 1973 injunction on the ban, then rejected an emergency stay on the injunction that planned Planned Parenthood Arizona had requested.

Arizona Attorney General Mark Brnovich speaks to a crowd of Republican voters at the party’s primary debate for the U.S Senate in Phoenix on June 23, 2022.

While the lifting of the injunction could get appealed, abortion-rights advocates filed Monday's lawsuit in Maricopa County Superior Court with the goal of getting a court to take the fangs out of the territorial law for physicians, and instead make it apply only to non-physicians who perform abortions.

The way to do this, the lawyers argue, is to "harmonize" the existing laws with a declaratory judgment "to allow licensed physicians to provide abortion care subject to certain restrictions," the suit states.

Planned Parenthood made this argument in its unsuccessful emergency motion last week and earlier in countering Brnovich's original motion to lift the injunction, but Pima County Superior Court Judge Kellie Johnson declined to deliberate the issue, saying it wasn't germane to the issue of in the injunction.

However, reconciling the laws was "certainly an issue that must be addressed," Johnson said in her Friday ruling. The final decision is likely to come from the Arizona Supreme Court.

More:Brnovich, abortion advocates want special session of Legislature to address abortion laws

What did the Legislature intend?

The lawsuit argues that in the years since 1973's Roe v. Wade decision, which made abortion legal nationally, Arizona passed laws that essentially granted a right to legal abortion, including laws that ban anyone but a physician from performing a surgical or medical abortion and a law passed this year that allows abortion up to the 15th week of pregnancy.

Together, the laws conflict and create confusion about what may or may not be illegal, the lawsuit states. That confusion, it continues, is evident in the statements of state leaders including Gov. Doug Ducey, who has said publicly the 15-week law — which went into effect on Sept. 24 — would take precedence over the territorial law, while Brnovich insists the territorial law is in effect.

The 52-page lawsuit acknowledges that the 15-week law has provision that states it does not repeal the territorial law. But the provision continues that it also doesn't repeal "any other applicable state law regulating or restricting abortion."

"Logically," that means the "physicians-only" laws grant a right for physicians to perform abortions, according to the groups, and that the Legislature's "intent was therefore to preserve the ability to have all of its abortion laws coexist."

That was definitely not the intent, countered Cathi Herrod, president of the Center for Arizona Policy.

"The legislation was clear — it did not repeal" the older law, she said of the 15-week ban.

The groups' argument is "clearly not going to succeed," she said, explaining that the Legislature passed "common-sense" laws over the years "to the extent permissible" under Roe v. Wade.

"While laws mandated that only physicians could perform abortions, if the Legislature was trying to authorize abortion, they would have written that differently," she said.

Reach the reporter at rstern@arizonarepublic.com or 480-276-3237. Follow him on Twitter @raystern.