Arizona appeals court rules doctors cannot be prosecuted under 19th century abortion ban

The Arizona Court of Appeals ruled on Friday that doctors who perform abortions in line with the state’s 15-week abortion ban cannot be prosecuted under a 19th century law that banned nearly all abortions.

“… the legislature has created a complex regulatory scheme to achieve its intent to restrict—but not to eliminate—elective abortions,” the court noted in its decision. 

For nearly 50 years, the state of Arizona was blocked by the courts from enforcing a near-total abortion ban that dates back to 1864. Amid this reality, the Arizona legislature passed a 15-week abortion ban that was signed into law by Gov. Doug Ducey (R) in March.

However, after the Supreme Court overturned Roe v. Wade in June, Arizona Attorney General Mark Brnovich (R) asked the court to set aside its injunction that prohibited enforcement under the older Arizona law.

The appeals court ruled on Friday that finding physicians criminally liable for providing abortions restricted under the old law would “eliminate the elective abortions the legislature merely intended to regulate” under its 15-week ban.

“Brnovich’s reading would effectively render [the 15-week abortion ban’s] regulation of elective abortion all but meaningless because there would be no legal elective abortions,” the court said.

The appeals court also noted that the Arizona legislature “conspicuously” avoided including language that would give the older law precedence if Roe v. Wade were overturned, even though the 15-week ban was almost identical to a Mississippi law that featured such language.