Rose Law Group chief litigator offers insights
By Terrance Thornton | Digital Free Pres
“What it has said is essentially Roe v. Wade was wrongly decided and it has been taken off the books,” said Andrew Turk of the Rose Law Group in a Monday June 27 phone interview.
His comments come about 48 hours after the U.S. Supreme Court — through its June 24 ruling and subsequent opinion in the case Dobbs v. Jackson Women’s Health Organization — made a historic ruling having ripple effects across the nation.
“It returns the nation to a time before Roe v. Wade when a women’s right to an abortion is not guaranteed by the Constitution and it reverts the issue back to a state-by-state basis,” Turk said.
Mr. Turk is chair of the litigation department at Scottsdale-based Rose Law Group and serves as a voluntary Judge Pro Tem in Maricopa County. He explains the ruling does not go into effect until 25 days after the initial Supreme Court ruling providing time for a petition for a rehearing to be filed with the court.
“The ruling will go into effect on the 25th day, which would be 25 days after last Friday,” he said, noting that is true only if a petition for a rehearing does not emerge. “Then, at that 25-day period, it reverts nationally to state law. In Arizona, we have an old statute that goes back to pre-statehood times.”
That law is A.R.S. 13-3603 that outlines punishments for any “person who provides, supplies or administers to a pregnant woman, or procures such woman to take any medicine, drugs or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless it is necessary to save her life, shall be punished by imprisonment in the state prison for not less than two years nor more than five years.”
Mr. Turk says although Arizona Gov. Doug Ducey signed Senate Bill 1164, the period between 25 days after the Supreme Court ruling and until Senate Bill 1164 goes into effect, which is 90 days after the close of the Arizona Legislature session, a 65-day period where rules are not clear will exist.
“Abortions that are not necessary to save the life of the mother are illegal,” he said. “The first question everyone must deal with is some will argue the statute is no longer effective. Also keep in mind, the new law, SB 1164 is aimed at physicians, it says nothing about the mother.”
Senate Bill 1164
While Gov. Ducey signed into law SB 1164 earlier this year, it will not go into effect until 90 days after the close of the current legislative session, which ended last Friday.
Mr. Turk explains SB 1164 creates new laws that say, in part, protections exist for a fetus at 15 weeks.
“The new statute is that up to 15 weeks, but then after 15 weeks it is illegal if there is not a medical emergency present,” he explained of interpretation of the statute. “There is also the ‘good faith medical judgment’ where it talks about if the pregnancy would result in loss of major bodily function for the mother, irreversible damage. It is a very confusing statutory scheme.”
Once SB 1164 becomes law, Mr. Turk says, a violation of state abortion rules could result in the loss of the ability to practice medicine in Arizona and a class 6 felony charge. Also, Mr. Turk explains, failure to provide required paperwork after an abortion is done that is allegedly legal under the medical emergency exception may result in a fine of $10,000.
“It will come down to prosecutorial discretion. For example, a physician cannot do any act or conduct any planning that culminates in an illegal abortion,” he said.
“Is it a substantial step if a physician makes a comment or is it substantial if he buys a plane ticket? The state also talks about ‘good faith clinical judgment’ and it focuses on the health of the condition of mother and not the fetus. If the fetus is going to have a malformity or medical condition it does not allow for an abortion after 15 weeks.”
