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Arizona Rules Abortion Doctors Can't Be Prosecuted Under Old Law

An Arizona court ruled that abortion doctors cannot be prosecuted under a pre-statehood law that criminalizes nearly all abortions yet was barred from being enforced for decades. The Arizona Court of Appeals declined to repeal the 1864 law, which carries a sentence of two to five years in prison for anyone who assists in an abortion and provides no exceptions for rape or incest, the Associated Press reports. Still, the court said doctors can’t be prosecuted for performing abortions in the first 15 weeks of pregnancy because other Arizona laws passed over the years allow them to perform the procedure, though non-doctors are still subject to be charged under the old law. “The statutes, read together, make clear that physicians are permitted to perform abortions as regulated” by other abortion laws, the appeals court wrote.


The pre-statehood law, which allows abortions only if a patient’s life is in jeopardy, had been blocked from being enforced shortly after the U.S. Supreme Court issued its 1973 Roe v. Wade decision guaranteeing women a constitutional right to an abortion. After the Supreme Court overturned the landmark decision in June, Attorney General Mark Brnovich asked a state judge to allow the law to be implemented. The Arizona Court of Appeals said it wasn’t viewing the pre-statehood law isolated from other state abortion laws, explaining that “the legislature has created a complex regulatory scheme to achieve its intent to restrict — but not to eliminate — elective abortions.”

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A daily report co-sponsored by Arizona State University, Criminal Justice Journalists, and the National Criminal Justice Association

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