Arizona Court of Appeals Division Two holds that licensed physicians may continue to provide abortion care in Arizona.

Over a century ago, before Arizona was a state and before women could vote, the territory enacted a near-total statutory ban on abortion care, excepting only that which was administered to save the pregnant person’s life. The ban, A.R.S. § 13-211 now renumbered as A.R.S. § 13-3603, imposed criminal penalties on anyone providing such care, including imprisonment. The trial court in 1971 enjoined the state from enforcing the ban, after Planned Parenthood challenged its constitutionality. The injunction was affirmed and modified for broader application after the United States Supreme Court’s decision in Roe v. Wade, 410 U.S. 113 (1973), which found a constitutional right to abortion care.

Since the 1973 injunction, the Arizona legislature has enacted a complex statutory scheme to regulate abortion care. Today, Title 36 encompasses these regulations. In short, Title 36 permits licensed physicians to provide abortion care up to a fetal gestational age of fifteen weeks if performed in compliance with Title 36’s exacting regulations and after fifteen weeks only if medically necessary (the “15-week law”). It also imposes reporting requirements as well as criminal and civil penalties for violations of the regulatory scheme.

In 2022, the United States Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, ___ U.S. ___, 142 S. Ct. 2228 (2022), overturned Roe. Shortly after, Arizona Attorney General Mark Brnovich requested that the trial court set aside the 1973 injunction and resurrect Arizona’s territorial-era ban on abortion care to allow the state to criminally prosecute abortion-care providers under § 13-3603. Planned Parenthood of Arizona and the Pima County Attorney’s Office argued that modification to the 1973 injunction required reconciliation between the territorial era ban in § 13-3603 and the subsequently enacted abortion care regulations in Title 36.

The trial court limited its review to whether the legal basis for the 1973 injunction (i.e., Roe) had been overruled (by Dobbs). Finding it had, the court granted the AG’s request to lift the 1973 injunction but declined to address the apparent conflict the revival of § 13-3603 created with Title 36. Planned Parenthood of Arizona and the Pima County Attorney’s Office challenged the court’s order, asking the appellate court to “harmonize” the two laws.

The Court of Appeals affirmed the trial court’s decision to lift the 1973 injunction and resurrect § 13-3603 in light of Dobbs. However, it found the lower court erred in not addressing the broader changes in the legal landscape since the 1973 injunction, including the subsequently enacted abortion care regulations in Title 36. The Court explained that when two statutes appear to conflict, courts must adopt a reconciliatory construction that gives force to both, considering legislative intent and the body of related statutes. Only when reconciliation is impossible does the court consider whether one statute repeals the other.

The AG conceded that the statutory schemes were not in direct, irreconcilable conflict but advocated for an isolated interpretation of § 13-3603 that would criminalize most abortion care and therefore effectively render meaningless Title 36’s related statutes regulating elective abortion. Title 36 would thus not be legally void, rather its enforcement, according to the AG, would be left to prosecutorial discretion. The Court rejected the AG’s interpretation.

First, the Court explained that the AG’s interpretation of § 13-3603 disregarded the legislative intent of Title 36, which was not to eliminate but to regulate abortion care. By restricting some abortion access (e.g., after 15 weeks) but not all (e.g., before 15 weeks), the legislature explicitly permitted licensed physicians to provide elective abortion care.

Second, the AG’s interpretation would create an irreconcilable conflict between § 13-3603 and Title 36, which not only disregards the legislative intent of Title 36, but also belies the courts’ objective to harmonize related statues where, as here, it is possible.

Third, the AG’s interpretation would leave the status of Title 36 in legal limbo. The resulting body of law around abortion care would not be sufficiently definite and therefore subject to arbitrary enforcement in violation of due process. The Court further explained that leaving enforcement of Title 36 solely to prosecutorial discretion would exacerbate uncertainty for licensed physicians across Arizona who provide abortion services.

Instead, the Court found it could reconcile and interpret § 13-3603 together with Title 36 such that both were given force, and neither was repealed. In so doing, the Court held that licensed physicians in Arizona are permitted to provide abortion care in compliance with Title 36 and that any other person who intentionally performs an elective abortion may be subject to criminal prosecution under § 13-3603.

The concurrence emphasized that because newer statutes almost always change the legal landscape, the harmonization process requires the court, where possible, to view newer statutes as affecting rather than supplanting pre-existing statutes. As such, the more specific subsequent abortion regulations in Title 36—such as the 15-week law—should be viewed as exceptions to the general prohibition on abortion, like the exception to save the pregnant person’s life already included in § 13-3603.

Judge Vásquez authored the opinion of the Court, in which ret. Judge Swann joined and Judge Eckerstrom specially concurred.

Note: Upon taking office in January 2023, after this case was published, newly elected Arizona Attorney General Kris Mayes expressed intent not to pursue former Attorney General Mark Brnovich’s interpretation of § 13-3603 or appeal the Court of Appeals’ decision.

Posted by: Payslie M. Bowman