Victory: Arizona Supreme Court Removes Injunction From Abortion Statute That Prevents Abortions From Being Committed Except To Save the Life of the Mother

Recently, the battle for innocent preborn life achieved a victory as the Arizona Supreme Court ruled that a pre-Roe statute is in effect now that Dobbs has struck down Roe and returned the issue of abortion to the states.

In this case, Planned Parenthood Arizona challenged a statute prohibiting abortion, except when necessary to save the life of the mother, which was originally adopted in 1901 and later recodified in 1977 after the U.S. Supreme Court’s decision in Roe v. Wade.

The ACLJ filed an amicus brief in this important case on behalf of our supporters and the Charlotte Lozier Institute. In our brief, we discussed the history of the statute in question:

Arizona has a long history of protecting innocent preborn human life. It enacted its first statutes prohibiting abortion in 1901, before the adoption of its current constitution and before its admission to the Union. Thus, preborn children were recognized as human beings worthy of protection at the time that the Arizona Constitution was adopted, lending all the more credence to the fact that they should be protected today. It is only the abortion precedents of the United States Supreme Court that have prevented Arizona’s original abortion statutes from being enforced and created the need for Arizona to pass new legislation to reiterate the State’s regard for and desire to protect preborn human life while navigating the arbitrary prohibitions placed on it by the United States Supreme Court’s case law.

As the Arizona court of appeals noted in the opinion at issue, it was only “[a]fter the Supreme Court decided Roe v. Wade, 410 U.S. 113 (1973),” that the lower court found the State’s abortion “statutes in question . . . unconstitutional as to all.” Planned Parenthood Ariz., Inc., v. Brnovich, 524 P.3d 262 (Ariz. Ct. App. 2022) (citing Nelson v. Planned Parenthood Ctr. of Tucson, Inc., 505 P.2d 580 (1973) (post-Roe decision dated Jan. 30, 1973)). Indeed, immediately prior to Roe, the court of appeals had issued a robust defense of both the sanctity of innocent human life and the State’s interest in protecting that life through statutes; it was only the United States Supreme Court that rendered the abortion statutes of Arizona “unconstitutional.”

In our brief, we also explained that “Roe was decided based on an outdated and limited scientific understanding. Scientific understanding of human fetal life has expanded exponentially over the past decades” and that the Arizona Supreme Court “should lift the injunction against § 13-3603 because Dobbs overturned Roe, which is no longer the law of the land and was the exclusive inhibitor against the law . . . .”

Throughout our brief, we detailed for the court the advances in scientific capabilities that have allowed us to more fully understand preborn life as it develops in the womb. For example, post-Roe, we have learned that fetal consciousness develops early in the second trimester, if not sooner, and that babies experience pain, also beginning (at least) early in the second trimester. These advances in knowledge about life in the womb underscore the compelling interest that states have in defending and protecting preborn life.

While the Arizona Supreme Court refrained from addressing or discussing preborn life and the state’s interest in protecting it, it did rightly uphold the statute in question, stating:

For the reasons discussed, the legislature has demonstrated its consistent design to restrict elective abortion to the degree permitted by the Supremacy clause and an unwavering intent since 1864 to proscribe elective abortions absent a federal constitutional right – precisely what it intended and accomplished in § 36-2322. To date, our legislature has never affirmatively created a right to, or independently authorized, elective abortion.

We are pleased with this court’s decision and that preborn children in Arizona are now among some of the most protected preborn lives in the United States. However, we also know that Planned Parenthood will not rest – it will continue to push its abortion-on-demand agenda in Arizona and across the country. This is why we cannot rest either. We must take this win and advance so we do not lose ground.

Join us as we fight to ensure that every preborn life is valued and protected.