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An Arizona court has ruled that abortion doctors cannot be prosecuted under a pre-statehood law that criminalizes nearly all abortions yet was barred from being enforced for decades.
But the Arizona Court of Appeals on Friday declined to repeal the 1864 law, which carries a sentence of two to five years in prison for anyone who assists in an abortion and provides no exceptions for rape or incest.
Still, the court said doctors can’t be prosecuted for performing abortions in the first 15 weeks of pregnancy because other Arizona laws passed over the years allow them to perform the procedure, though non-doctors are still subject to be charged under the old law.
“The statutes, read together, make clear that physicians are permitted to perform abortions as regulated” by other abortion laws, the appeals court wrote.
The pre-statehood law, which allows abortions only if a patient’s life is in jeopardy, had been blocked from being enforced shortly after the U.S. Supreme Court issued its 1973 Roe v. Wade decision guaranteeing women a constitutional right to an abortion.
But after the Supreme Court overturned the landmark decision in June, Attorney General Mark Brnovich asked a state judge to allow the law to be implemented.
The Arizona Court of Appeals said it wasn’t viewing the pre-statehood law in isolation of other state abortion laws, explaining that “the legislature has created a complex regulatory scheme to achieve its intent to restrict — but not to eliminate — elective abortions.”
In a statement, Brittany Fonteno, president and chief executive of Planned Parenthood Arizona, said the decision means a state law limiting abortions to 15 weeks into a pregnancy will remain in place.
