Shadow of uncertainty hangs over abortion ban enforcement

The chief medical officer for Planned Parenthood Arizona said Thursday that abortions could soon become unavailable - at least for some period of time - even if state lawmakers repeal the territorial-era restrictions.

Jill Gibson acknowledged that the state Senate is set to vote Wednesday to scrap the law that makes all abortions illegal except to save the life of the mother. That follows a House vote earlier this week to do the same thing.

And Gov. Katie Hobbs said she will sign it.

But the governor herself acknowledged Thursday that she has no power to keep doctors who perform abortions from being arrested between the time the Arizona Supreme Court finally declares the old era law is once again enforceable - something that can occur within weeks - and the time it is repealed, a process that could take months.

It all comes down to timing.

"Unfortunately, it's not possible to get this repeal enacted right away,'' the governor said.

That's because the earliest the old law could be wiped from the books is 91 days after the legislative session ends. And that means new laws likely won't kick in until sometime in August, if not later.

That timing issue is on Gibson's mind.

"If the total abortion ban is repealed, there could still be without further legal action a 'blackout' period where abortion is not legal in our state,'' she said, given that 91-day delay. And Gibson said her organization is preparing for what it will have to do to help its patients access the care they need.

"We will be working with our partners in other states through our patient navigator program until we can resume providing abortion care,'' she said.

That program can connect patients with organizations that provide financial resources should they need to go elsewhere. That includes securing food, lodging and transportation for out-of-state travel and helping to secure childcare, including for those who must leave Arizona.

Gibson pointed out that Planned Parenthood did this in late 2022 when a trial judge initially ruled that the law, dating to 1864 and proving up to five-year prison terms for doctors, was enforceable despite a more recent statute setting a 15-week limit. That need disappeared with a Court of Appeals ruling overturning the trial judge. But it is now back with the state Supreme Court upholding the older law.

Hobbs said Thursday it should not have come to the point where abortions would be unavailable until the legislation repealing the old law finally becomes effective.

She pointed out that, even before she became governor in 2023, she called for the old law to be repealed.

That was after the 2022 U.S. Supreme Court ruling in Dobbs v. Jackson , which overturned its own 1973 precedent in Roe v. Wade that said women have a constitutional right to terminate a pregnancy. And that, in turn, returned the decision to each state, including to Arizona, which never repealed its law dating back to 1864 from the books even after the Roe decision.

"This result that we're seeing right now is exactly what we said would happen,'' Hobbs said. "They should have repealed it a long time ago so we wouldn't be in this position.''

There have been bills to do just that for years.

But until last month there was no pressure on lawmakers to repeal that old law. That's when the Arizona Supreme Court ruled last month that it superseded the more recent 15-week limit.

"It is really, really, really frustrating,'' Hobbs said. "And there's a lot of fear from providers and patients about what care they can provide and get.''

That includes the arrest of doctors.

Hobbs has been relying on her 2023 executive order giving Mayes the exclusive authority to prosecute any violations of any abortion law, authority that normally is the purview of each of the 15 individual county attorneys. And Mayes has publicly stated she will not bring any such charges against a medical provider.

But the governor's ability to suspend the authority of county attorneys, which some have questioned as legal, does not extend to law enforcement. And that became an issue after the Copper Courier reported last week that U.S. Senate candidate Kari Lake called on county sheriffs to start enforcing the old law.

"We can have that law, but it's not going to be enforced with the people we have in office,'' Lake said in a statement at a Mohave County Republican Party event.

"The only people who can enforce that our law are our sheriffs,'' the paper reported her saying. "And we need to start asking the sheriffs if they're willing to enforce that law.''

There was no immediate response from Lake to questions about her statement.

So how does Hobbs think she can keep doctors from being arrested?

"Your question exactly illustrates the chaos and confusion that exists because of this ban, and the reason that myself and others have been calling for the repeal of this ban since Dobbs in 2022,'' she said.

Repeal now depends on two Senate Republicans.

T.J. Shope of Coolidge and Shawnna Bolick of Phoenix voted last week with Democrats to suspend the rules to allow the Senate to take up legislation identical to what the House just approved. But their votes are still needed Wednesday for final action.

Shope said he remains ready to cast that final vote. He told Capitol Media Services that he believes that a 15 week limit, approved by the Legislature in 2022 is "where I think it should be.''

And Shope said he sees the 15-week law, which the Supreme Court said was trumped by the older law, as a "reasonable compromise'' between the territorial-era statute and a more comprehensive initiative seeking to ask voters to permit abortion in all circumstances through fetal viability, and beyond that in cases of the life or the physical or mental health of the mother.

There was no immediate response from Bolick.

There is another option to delay enforcement of the territorial-era law: Mayes could file a new lawsuit challenging the old law and ask that it be stayed until it is resolved.

The case before the Supreme Court focused on the narrow issue of whether the 15-week law trumped the old law. But the state high court has never considered whether restricting a woman's ability to terminate a pregnancy runs afoul of a privacy provision in the Arizona Constitution.

An aide to Attorney General Kris Mayes, who has advanced that theory, said Thursday all options are being considered.

How quickly the old law will return, even if temporarily, is currently up in the air.

The original Supreme Court ruling earlier this month provided a 14-day delay before it would issue a formal "mandate'' of its order that the older law trumps a more recent statute allowing abortions until 15 weeks. On top of that, there's an agreement in a parallel challenge to the old law to delay actual enforcement for 45 days after that mandate.

That would have meant June 8.

But Mayes bought at least two extra weeks by filing a formal motion Tuesday asking the state Supreme Court to reconsider its ruling. And the court won't issue that mandate, the one that starts the 45-day clock running, until it rules on that motion.

Still, Hobbs acknowledged, a gap still will exist. And she has no way to keep that from happening once there is a final order.

"I'm hopeful that the courts would see this as a compelling reason to keep the stay in place,'' the governor said.

"But there's no guarantee,'' she said. In fact, neither Planned Parenthood Arizona nor Mayes' office has sought an additional stay.

With that gap looming, Hobbs and Mayes on Thursday unveiled a website providing answers to questions about access to reproductive health going forward, including abortions. And that, in turn, provides links to another site where women can learn about abortion services, including where to find financial help to travel out of state if that becomes necessary.

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