Planned Parenthood Arizona v. Mayes

In 1864, Arizona, then a territory of the United States, enacted a near-total abortion ban, permitting the procedure only when necessary to save the mother’s life (“1864 ban”). This ban, which was never formally repealed, remains codified in Arizona state law, and states:  

"A person who provides, supplies or administers to a pregnant woman, or procures such woman to take any medicine, drugs or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless it is necessary to save her life, shall be punished by imprisonment in the state prison for not less than two years nor more than five years."

A.R.S. § 13-3603  

In 1973, the United States Supreme Court ruled in Roe v. Wade that abortion was a right protected by the federal constitution, rendering the 1864 ban unenforceable.  

In 2022, the Arizona Legislature enacted a ban on abortions after fifteen weeks of pregnancy, with an exception for medical emergencies (“15-week ban”). The 15-week ban states,  

“A. Except in a medical emergency, a physician may not perform, induce or attempt to perform or induce an abortion unless the physician or the referring physician has first made a determination of the probable gestational age of the unborn human being and documented that gestational age in the maternal patient's chart and, if required, in a report required to be filed with the department as set forth in subsection C of this section. The determination of probable gestational age shall be made according to standard medical practices and techniques used in the medical community. 

B. Except in a medical emergency, a physician may not intentionally or knowingly perform, induce or attempt to perform or induce an abortion if the probable gestational age of the unborn human being has been determined to be greater than fifteen weeks.” 

A.R.S. § 36-2322(A)-(B) 

 
In 2022, the United States Supreme Court reversed itself in Dobbs, removing abortion from federal protection and leaving states to decide whether to guarantee reproductive freedom.

Soon afterward, then-Arizona Attorney General Mark Brnovich requested a state court issue a ruling reinstating the 1864 ban. Planned Parenthood Arizona and the Pima County Attorney’s Office opposed the request. The state court subsequently ruled in favor of the Attorney General, declaring the 1864 ban in effect and appointing Dr. Hazelrigg guardian ad litem of Arizona’s unborn children.

This ruling was subsequently overturned on December 30, 2022, by the Arizona Court of Appeals, which harmonized the two abortion bans, ruling the 1864 ban applied to persons who were not doctors performing abortions, but that the fifteen-week ban passed in 2022 allowed doctors to perform abortions until fifteen weeks of pregnancy. The court stated that ruling the 1864 ban overrode the 15-week ban would violate the legislature’s intent to regulate and allow abortions up to that time and create an irreconcilable conflict between two sets of laws. The court's opinion also pointed to due process concerns, as one abortion ban could criminalize conduct allowed by another, leading to confusion among doctors about which law to follow and potential prosecution. 

Dr. Hazelrigg appealed to the Arizona Supreme Court, asking it to overturn the court of appeals’ decision and declare the 1864 ban to be the controlling law. On August 23, 2023, the Arizona Supreme Court agreed to hear the appeal.  

On October 4, 2023, LWV Arizona and fifteen business owners filed an amicus brief urging the court to uphold the court of appeals’ decision. The brief emphasized that the 1864 ban was enacted when women had no right to vote, and by extension, no right to influence laws regulating their bodies and freedom. The brief also pointed out that women living in states with abortion bans suffered from lower living standards and inequality, and that reinstating the 1864 ban would hurt Arizona’s continued ability to grow and prosper.  

On April 9, 2024, by a 4-2 vote, the Arizona Supreme Court reversed the court of appeals' decision and ruled the 1864 abortion ban was the controlling law. The court declared the legislature did not create an independent right to abortion under state law when it enacted the 15-week ban, stating the legislature's continued recodification of the 1864 ban, among other actions, constituted an intent to reinstate it if Roe v. Wade was overturned.  The court stayed its ruling for two weeks and remanded the case to the trial court for further proceedings on other potential claims against the 1864 ban. 

LWV Arizona was represented in this matter by Papetti Samuels Weiss McKirgan LLP. 

Postscript: On May 2, 2024, Arizona Governor Katie Hobbs signed legislation repealing the 1864 abortion ban. However, the state's fifteen-week ban on abortion remains in effect.