Legal/Law/Criminal Justice and Reform

State Supreme Courts To Decide The Fate Of Multiple Pro-Life Laws

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• Several state Supreme Courts heard oral arguments on abortion cases this week, as a result of the fallout of the United States Supreme Court’s decision to overturn Roe v. Wade last year.
• The cases revolve around two laws from the 1800s as well as legislation passed post Dobbs v. Jackson Women’s Health Center. 
• “Consistent with this clear reaffirmation of life, we are urging the Arizona Supreme Court to allow the state’s pro-life law to once again protect the lives of countless, innocent unborn children,” Jake Warner, senior counsel for Alliance Defending Freedom, said in a press release. 

Three state Supreme Courts heard oral arguments on abortion cases this week and are expected to weigh in on several pieces of pro-life legislation that were passed after the Supreme Court overturned Roe v. Wade in June 2022.

After the Supreme Court determined abortion was not a constitutional right per the Dobbs v. Jackson Women’s Health Center decision, many states have begun passing both pro-abortion and pro-life laws, resulting in a multitude of lawsuits over the past year and a half. Three cases regarding abortion access in New Mexico, Arizona and Wyoming finished oral arguments at the states’ Supreme Court’s this week and are now waiting for a verdict.

Several counties in New Mexico passed ordinances in late 2022 and earlier this year citing the Comstock Act passed by Congress in 1873, which made it illegal to mail anything “obscene, lewd, lascivious,” including “any drug or medicine … for the prevention of contraception, or for causing an unlawful abortion,” according to the Source NM, a local media outlet. The New Mexico legislature responded by passing HB 7 that prohibits the state from blocking access to reproductive health services, including abortions.

In April, the city of Eunice, New Mexico, filed a lawsuit against Democratic Gov. Michelle Lujan Grisham and Attorney General Raúl Torrez, arguing that the Comstock Act, as a federal statute, is the “supreme Law of the Land,” according to KRQE, a local media outlet. In response, Torrez filed a supplemental briefing with the state Supreme Court in May addressing the city’s arguments, calling the act an “antiquated federal law,” according to a press release.

“Statewide access to healthcare is not determined by cities and counties. All New Mexicans deserve equal access to health care, including abortion services, regardless of where they live in the state,” Torrez said. “Our response reiterates that the petition rests on the violation of the New Mexico Constitution by the cities and counties. We will continue to push back against any local government in New Mexico that oversteps its legal authority.”

The state’s highest court heard oral arguments for an hour Wednesday and seemed likely to rule in favor of blocking the ordinances, but did not appear in favor of the attorney general’s argument that abortion is a constitutional right, according to Reuters.

The state Supreme Court of Arizona heard a case on Tuesday regarding another 1800s law that makes performing abortions in the state illegal, except to save the life of the mother, according to the AZ Mirror, a local media outlet. Prior to the Supreme Court’s decision in Dobbs, the state also passed a 15-week ban in March, which notes that the new legislation is not mean to replace any previous laws on the issue.

Republican Attorney General Mark Brnovich appealed to the state Supreme Court in July 2022, asking that the 1864 law be reinstated in addition to the 15-week ban, according to The Associated Press. Dr. Eric Hazelrigg, an obstetrician and medical director of Choices Pregnancy Center in Arizona, was named by the court in September as the defendant instead of Brnovich, who was succeeded by democrat Kris Mayes in January.

Jake Warner, senior counsel for Alliance Defending Freedom, which is representing Hazelrigg, said prior to the oral arguments that the law “has protected unborn children for over 100 years,” according to a press release.

“Consistent with this clear reaffirmation of life, we are urging the Arizona Supreme Court to allow the state’s pro-life law to once again protect the lives of countless, innocent unborn children,” Warner said in a statement.

Dr. Jill Gibson, chief medical officer at Planned Parenthood Arizona, who is suing over the law, said in a press release following the oral arguments, that allowing it to go into effect “would be catastrophic.”

“Arizonans deserve the freedom to make their own decisions about their reproductive health,” Gibson said. “The Arizona Supreme Court has the opportunity to refuse this bleak future and reject this egregious threat to reproductive health care. Our community deserves better – we deserve a right to make our own decisions about our bodies and our health.”

In Wyoming, the Supreme Court is considering whether to allow several Republican state representatives join a lawsuit regarding the state’s Life Is a Human Right Act, which bans abortions with limited exceptions for rape and incest or to save the life of the mother, according to the Wyoming Tribune Eagle. Tim Garrison, senior counsel for ADF, argued on behalf of state Reps. Rachel Rodriguez-Williams and Chip Niemann and Right to Life Wyoming, Tuesday, saying that the law allows parties with an established “interest in the lawsuit” to “intervene.”

Teton County District Judge Melissa Owens had previously determined that the parties would not be allowed to join the lawsuit, prompting ADF’s request for a decision from the higher court, according to the Wyoming Tribune Eagle. Owens is presiding over the case regarding the state’s law and another ban that would prohibit the distribution or use of chemical abortion pills in the state, according to the Casper Star Tribune.

Oral arguments for the case took place on Thursday and Owens did not indicate when she would deliver her ruling, according to the Casper Star Tribune. Both parties are expected to appeal the decision to the state’s Supreme Court.

The Texas Supreme Court recently ruled against a pregnant woman on Dec. 9, who asked for an exemption so she could abort her child despite the state’s near-total ban on the procedure. The U.S. Supreme Court also announced this week that it would be taking on a case regarding the Food and Drug Administration’s approval of the chemical abortion pill mifepristone, marking the first time the court has taken on a major abortion case since Dobbs.

The attorney for the City of Eunice and AG Torrez’s office did not respond to the Daily Caller News Foundation’s request for comment.