Center for Arizona Policy Calls for State Supreme Court to Reinstate Arizona’s Pre-Roe Abortion Limitations

The Arizona Center for Policy (CAP) shared Wednesday that it has entered the legal battle surrounding Arizona’s territorial-era limitations on abortions with an amicus brief to the state Supreme Court.

“State lawmakers kept the state’s pre-Roe law on the books as they passed dozens of laws protecting life while Roe forbade them from going further,” said CAP President Cathi Herrod. “Allowing the lower court ruling to stand threatens thousands of lives a year, as well as the integrity of the judiciary, and the Legislature’s power to govern.”

The new amicus brief, filed Monday, argues that the Arizona Court of Appeals made an error when making a previous decision on this issue. As reported by The Arizona Sun Times, the law in question is Arizona Revised Statute (ARS) § 13-3603, which states that no one cannot perform an abortion in the state unless it is required to protect the mother’s life. However, in 2022, before the Supreme Court of the United States (SCOTUS) overturned Roe v. Wade, the Arizona Legislature passed Senate Bill (SB) 1164, which prohibits the procedure after 15 weeks of pregnancy. After some legal back and forth to determine which law the state should follow, at the end of 2022, the appeals court released a ruling stating that the 15-week law took priority, allowing a small window for those seeking abortions to get one.

However, in CAP’s new brief, the nonprofit argued that this ruling was incorrect and ignored legislative intentions. First of all, they argued that the lower court ignored ARS § 1-219, which states that the “laws of this state shall be interpreted and constructed” to provide unborn children “at every stage of development” all the rights given to other citizens of this state. However, this law is subject only to the U.S. Constitution and decisions from SCOTUS. Nevertheless, CAP argues that because the high court determined the Constitution does not confer a right to abortions, the state’s law should be interpreted to protect unborn children at all points of development; therefore, § 13-3603 should be the law of the land.

The nonprofit argues that § 1-219, at the very least, establishes legislative intent that lawmakers want to see unborn children fully protected. Ultimately, they requested the AZ Supreme Court to grant review and uphold § 13-3603, which will also put the lower court’s “raw judicial power” in check.

It is not just CAP called on the court, as the state’s legislative leaders, House Speaker Ben Toma (R-Peoria) and Senate President Warren Petersen (R-Gilbert), also filed an amicus brief the same day. In this brief, the lawmakers insist that Arizona’s statutes relating to abortion all stand as independent laws, and one does not cancel out the other, meaning both can be in effect simultaneously.

Toma and Petersen agreed with CAP that the legislature intends to always protect unborn lives. They pointed to the sponsor of SB 1164, former State Senator Nancy Barto (R-Phoenix), who testified about her bill before the House Judiciary Committee in January of 2022. During her testimony, Barto explained that she had made her bill to mirror a law in Mississippi but did not share any intentions of her bill being used to allow abortions before the 15-week mark. The bill itself even makes this intention clear, as it states it does not “[r]epeal, by implication or otherwise, section 13-3603.”

“In sum, the Court of Appeals ascribed to the Legislature an intention it never espoused and imposed a policy outcome the Legislature never ordained,” according to the brief.

Like CAP, the lawmakers asked the state Supreme Court to grant review and vacate the lower court’s opinion by completely reinstating § 13-3803.

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Neil Jones is a reporter for The Arizona Sun Times and The Star News Network. Follow Neil on Twitter. Email tips to [email protected].
Photo “Arizona Supreme Court Justices” by Arizona Supreme Court.



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One Thought to “Center for Arizona Policy Calls for State Supreme Court to Reinstate Arizona’s Pre-Roe Abortion Limitations”

  1. Margaret

    The Supreme Court is just that – they INTERPRET THE CONSTITUTION – you don’t – and you don’t get to over rule the S. C. either. Read the Constitution – I’ll be anyone that actually immigrated to this nation understands this ! If you don’t like the law of our nation then find a new one. We have more freedoms here than any other nation on earth and you complain cause you can’t legally kill your own child. How psychotic is that !