PHOENIX (AP) — An Arizona court has ruled that abortion doctors cannot be prosecuted under a pre-state law that criminalized nearly all abortions but banned them for decades.
But an Arizona appeals court on Friday refused to strike down the 1864 law that imposed a prison sentence of two to five years for anyone who facilitates an abortion, including rape or incest.
Still, the court said doctors could not be prosecuted for performing abortions because other Arizona laws passed over the years allowed them to perform the procedure, but non-doctors could still be charged under the old law.
The appeals court wrote that “the statutes, read together, expressly state that physicians may perform abortions in accordance with” other abortion laws.
Shortly after the U.S. Supreme Court issued its 1973 Roe v. Wade decision guaranteeing women a constitutional right to an abortion, the former state law that allowed abortion only when the patient’s life was threatened was blocked from enforcement.
But after the Supreme Court overturned the landmark ruling in June, Attorney General Mark Brnovich asked a state judge to allow the law to go ahead.
The Arizona appeals court said it did not look at the pre-state law in isolation from abortion laws in other states, explaining that “the Legislature created a complex regulatory program to effectuate its restriction—but not its elimination— Intent to elective abortion.”
Abortion providers stopped offering procedures in the state after Roe was overturned, restarted in mid-July after a “personality” law that gave legal rights to unborn children was blocked by a court, and stopped again when a Tucson judge allowed the 1864 law provider is enforced.
Planned Parenthood of Arizona, the state’s largest abortion provider, is restarting abortion care statewide again after Brnovich’s office agreed in a separate lawsuit not to enforce the old law until at least next year.
A Phoenix doctor who runs a clinic offering abortions and the Arizona Medical Association also filed a separate lawsuit seeking to block the Territory-era law, arguing that a law enacted by the Legislature after Roe’s decision should take precedence and should allow abortions up to 15 weeks of pregnancy.
Brnovich is trying to stay the lawsuit pending an appeals court decision in the Planned Parenthood case. In an agreement with abortion doctors and the medical association, he said he would not enforce the old law until at least 45 days after the original case was finalized.
A law enacted by the legislature this year limits abortions to 15 weeks of pregnancy, well ahead of the 24 weeks normally allowed in the Roe decision, which was struck down by the U.S. Supreme Court in June.
The ban went into effect in some states after the decision in the Roe case was overturned and left the issue of abortion to states.
Abortion is illegal at all stages of pregnancy, with various exceptions, in the following 13 states: Alabama, Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri , Oklahoma, South Dakota, Tennessee, Texas, West Virginia and Wisconsin.
The bans in Arizona, Montana, North Dakota, Ohio, South Carolina, Utah and Wyoming are also not in effect, at least for now, as courts decide whether they can be enforced.
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