Arizona Supreme Court to hear arguments on near-total ban on abortion in the state Arizona's Supreme Court will hear arguments Tuesday on whether abortions should be allowed up to 15 weeks after conception, or be almost totally banned under an 1864 law.

Arizona Supreme Court to hear arguments on near-total ban on abortion in the state

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LEILA FADEL, HOST:

Abortion is before Arizona's Supreme Court today. The state could return to a near-total ban. Katherine Davis-Young with member station KJZZ in Phoenix reports.

KATHERINE DAVIS-YOUNG, BYLINE: When the U.S. Supreme Court last year returned abortion-regulating powers to the states, Arizona had two abortion laws on the books. One, passed last year, outlaws abortions after 15 weeks. The other, which dates back to 1864, bans abortions in almost all cases. Abortion providers didn't know which to follow.

JILL GIBSON: It was a very dark time to be a physician.

DAVIS-YOUNG: Doctor Jill Gibson is medical director for Planned Parenthood Arizona. As state courts have tried to work through the legal chaos, Planned Parenthood canceled appointments and sent patients out of state, only to then reopen with short staff and a new set of rules. But for almost a year now, there's been some clarity. A state appeals court ruled doctors could provide abortions up to 15 weeks. Now, the state's Supreme Court is reconsidering that ruling. Gibson is frustrated to be faced with legal uncertainty once again.

GIBSON: That was decided. And we - you know, we're comfortable with that interpretation, and I think we all have been able to move forward past that point. And so we just feel like this is a baseless attempt to bring ideology back into a personal decision between a patient and their provider.

DAVIS-YOUNG: In earlier phases of this case, Arizona's then-attorney general, Republican Mark Brnovich, pushed courts to reinstate the older, more restrictive law. But the new attorney general, Democrat Chris Mayes, is no longer pursuing the case. Instead, Dr. Eric Hazelrigg, medical director of a group of Phoenix-area anti-abortion pregnancy centers, has stepped in as an intervenor. He's joined by Yavapai County Attorney Dennis McGrane.

JACOB WARNER: Dr. Hazelrigg and Mr. McGrane are in this case to protect Arizona's pro-life law that protects these most vulnerable among us.

DAVIS-YOUNG: Jacob Warner, attorney with Alliance Defending Freedom, is representing Hazelrigg and McGrane. His clients argue the Court of Appeals overlooked a critical piece of the 15-week law, which makes direct reference to the older law.

WARNER: Lawmakers were clear. What they said was that these Roe-era abortion regulations - they create no right to an abortion, and it doesn't repeal the old pro-life law.

DAVIS-YOUNG: Justices may see a point there, says Barbara Atwood, professor of law with the University of Arizona.

BARBARA ATWOOD: I think the legal argument that might be persuasive to them is that the Court of Appeals was too creative in its effort to harmonize these laws.

DAVIS-YOUNG: Planned Parenthood Arizona argues this case really isn't about whether abortions should be legal, but what the state should do when two statutes conflict. And Atwood says justices might agree.

ATWOOD: The justices may, in their personal lives, be very anti-abortion, but vote to affirm what the Court of Appeals did because they agreed with that statutory method.

DAVIS-YOUNG: And the justices, all appointed by Republican governors, are known to be conservative. One justice who has publicly accused Planned Parenthood of genocide has recused himself from the case. If the six remaining justices were to decide abortions are illegal in the state, except in life saving circumstances, there is still a question of enforcement.

ATWOOD: I think that that's an unresolved issue.

DAVIS-YOUNG: Arizona's Democratic governor, Katie Hobbs, has issued an executive order giving the state's attorney general - not county attorneys - the final say when it comes to abortion. The attorney general has said she would not prosecute doctors in those cases. Oral arguments are set for today. It's not clear when the justices will give their decision. Whatever they decide, abortion advocates are already pursuing a 2024 ballot measure that would expand abortion access far beyond either of the laws before the court.

For NPR News, I'm Katherine Davis-Young in Phoenix.

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