PHOENIX — Attorney General Mark Brnovich says there’s nothing legally wrong with having two different statutes on the books outlawing abortion because prosecutors can choose which one to enforce.
Or whether to enforce neither.
Hanging in the balance is the possibility that doctors who say they are following one law could still be sent to prison if a prosecutor decides to bring charges based on the other.
The claim comes as Brnovich is trying to convince the state Court of Appeals to rethink its conclusion that a trial judge has to “harmonize’’ a law going back to 1864 that pretty much outlaws the procedure with a new statute that allows abortions through the 15th week of pregnancy. Attorneys from Planned Parenthood Arizona are arguing that can be done by reading the new law as applying to doctors, keeping the territorial-era law only for those who are not medical professionals.
Brnovich, in a 70-page legal filing, said that argument is ridiculous on its face.
He pointed out the old law makes it a crime for a “person’’ to perform an abortion except to save the life of the mother. Violators face a mandatory penalty of between two and five years in state prison.
That law was effectively placed on hold by the 1973 U.S. Supreme Court ruling in Roe v. Wade that declared women have a constitutional right to terminate a pregnancy until a fetus is viable, considered between 22 and 24 weeks.
In June, however, the justices overturned their own precedent, saying states are again free to enact their own abortion restrictions.
Brnovich said that reactivated the old law, which never was repealed. He then got a trial judge to dissolve a state-issued injunction against its enforcement which was enacted after the original Roe decision.
All that, he argued, returns the law to what is was — including who could be punished. And that, he said, includes doctors who clearly are “persons’’ under state law.
“When the statute was enforced prior to the 1973 injunction, licensed physicians were not excluded from prosecution,’’ he told the appellate court.
His legal position about the two laws — and both being enforceable — conflicts with that of Gov. Doug Ducey. After signing the 15-week ban, the governor told Capitol Media Services he believes the new law supersedes the old one.
Under either law, however, there is no risk to a woman getting the procedure. Legislators repealed that statute in 2021.
It is true, Brnovich acknowledged, that lawmakers, acting before the Supreme Court overturned Roe, enacted the 15-week ban. But he told the appellate judges that does not permit them to conclude that this new law effectively exempts doctors from punishment under the old law.
“It is well-settled that the Legislature defines crimes and their elements, and courts may neither add nor subtract elements to those definitions,’’ the attorney general said.
Brnovich argued that just because the same conduct is covered by two different laws — with different penalties — does not make it illegal.
“Local prosecutors have independent discretion to choose which statute to enforce,’’ he said. “Regardless of which statute a local prosecutor chooses to enforce, that choice does not mean the other abortion statutes conflict.’’
Brnovich said that is true here.
“If a licensed physician performs an abortion at a time during pregnancy when more than one criminal statute applies, then the decision whether to prosecute and what statute or statutes to apply belongs to the prosecutor,’’ he said. “Such prosecutorial discretion — even when a local prosecutor chooses the statute with a harsher penalty — does not render statutes left unenforced superfluous.’’
Brnovich said that is particularly true in cases like this, when lawmakers enacted the new law and did not repeal the old one, that the Legislature did not intended one of them to be the exclusive means to punish such conduct.
Of course, he acknowledged, that discretion by prosecutors goes beyond picking which law to use when bringing charges for performing an abortion. It also means they could decide, for whatever reason, not to bring charges at all, even if there is a violation of one or both laws.
But Brnovich said doctors cannot legally demand that they be subject only to the 15-week ban — and be exempted from prosecution under the older one.
“Unless the physician can establish that the county attorney’s choice among statutes discriminated against a particular class of defendants, there is no violation of due process in granting such prosecutorial discretion,’’ Brnovich said.
The judges will hear arguments at the end of the month.