Arizona Supreme Court Lifts Injunction on Near-Total Abortion Ban

Three days ago, the Arizona Supreme Court issued a decision in Planned Parenthood Arizona v. Mayes, No. CV-23-0005-PR, ruling that § 13-3603, a fifty-year-old statutory near-total ban on abortions, was once again, enforceable. Following the United States Supreme Court's recognition of a federal constitutional right to abortions in Roe, the Arizona Court of Appeals originally enjoined enforcement of the statute in 1973. However, following the United States Supreme Court’s decision in Dobbs, the Attorney General of Arizona moved to set aside the permanent injunction against the near-total ban on abortion.

Planned Parenthood Arizona opposed the motion to set aside the permanent injunction, arguing the ban had to be modified to be consistent with existing § 36-2322 and other applicable provisions set forth in Title 36, which provided an independent statutory right to abortions that are performed within the fifteen-week gestational period. Specifically, § 36-2322(b) provides, in relevant part: "[e]xcept 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." However, the Arizona Supreme Court rejected Planned Parenthood’s argument, ruling that the legislature when enacting § 36-2322, did not intend to create a privilege secured by law. The court relied on the statutory history § 36-2322, which stated that the act did not “create or recognize a right to abortion.” Planned Parenthood Arizona v. Mayes, No. CV-23-0005-PR, ¶24 (Ariz. Apr. 9, 2024).

Takeaway
 
Notably, the court found that § 36-2322, and various other Title 36 provisions, regulating abortion-related conduct and criminal and regulatory sanctions will remain relevant even when the permanent injunction against § 13-3603’s is removed. "For example, Title 36’s abortion licensing requirements, A.R.S. § 36-449.02, reporting requirements, A.R.S. §§ 36-2161 to -2164, and emergency consent requirements, A.R.S. § 36-2153(C), may apply to abortions necessary to save a woman’s life." Planned Parenthood Arizona v. Mayes, No. CV-23-0005-PR, ¶47. The Arizona Supreme Court has now paved the way for the lower court to remove the permanent injunction against an abortion ban that was promulgated in the 19th century. Once enforceable, this bill will subject any physician who assists a woman receiving an abortion to criminal liability.

As new developments arise, we will continue to update our Dobbs Decision Resource Center.  In the meantime, please contact one of the lawyers in Shipman’s Health Law practice group if you have questions about this ever-changing legal landscape.