PHOENIX — An Arizona judge will hear arguments Friday on the state’s request to allow prosecutors to enforce a near-total ban on abortions under a law that has been blocked for nearly 50 years under a now-overruled U.S. Supreme Court ruling,
Abortion-rights advocates are fighting the request from Republican Attorney General Mark Brnovich to lift an injunction blocking enforcement of the ban on abortions unless the mother’s life is in danger. That law was first enacted decades before Arizona was granted statehood in 1912 and blocked following the U.S. Supreme Court’s 1973 decision in Roe v. Wade legalizing abortion.
Providers across Arizona stopped abortions after the Supreme Court’s June 24 opinion overturning Roe, saying it was too risky to move ahead with the old ban still on the books and with a 2021 law that grants all rights to pre-born children also in play. A federal judge blocked a major part of that law on July 11, but providers have not restarted abortion services.
Brnovich said two days after the “personhood” law was blocked that he would formally seek to have the 1973 injunction blocking the old abortion ban lifted. He had said shortly after the Supreme Court decision that he believed the ban was enforceable,
Attorneys representing Planned Parenthood and its Arizona affiliate argue that a multitude of laws restricting and regulating abortion enacted by the state Legislature since Roe was decided would be rendered meaningless if the court allowed the old law to be enforced.
They note that just this year, the Legislature passed a law signed by Republican Gov. Doug Ducey that criminalizes performing abortions after 15 weeks of pregnancy. Ducey contends that the new law he signed takes precedence over the pre-statehood law.
Planned Parenthood attorneys are urging the judge in Tucson, where the case originated in 1971, to “harmonize” the old and newer laws by allowing existing restrictions and the 15-week ban to be enforced against doctors, while non-doctors would be subject to the total ban.
Not doing so, Planned Parenthood attorneys wrote in court papers, would “nullify in one fell swoop dozens of duly enacted laws, which have been passed more recently and which deal more specifically with the subject matter, thereby actually preventing the State from carrying out all its duly enacted laws.”
Lawyers with the attorney general’s office say that argument quickly falls apart. That’s because “in anticipation that the U.S. Supreme Court could overrule Roe, the Legislature has repeatedly preserved Arizona’s statutory prohibition on performing abortions except to save the life of the mother.”
They noted that the 15-week ban that Ducey signed expressly said it did not repeal the old law.
Pima County Superior Court Judge Kellie Johnson is set to hear arguments on Brnovich’s request to lift the 1973 injunction Friday afternoon.
The case originated in 1971 when the Tucson affiliate of Planned Parenthood, several doctors and a woman who wanted an abortion sued to overturn the law. A Pima County trial judge ruled the next year that a fetus does not have constitutionally protected rights and that the law banning abortion also violated the doctors’ rights to practice medicine as they saw fit.
The Arizona Court of Appeals overturned that ruling, rejecting wholesale the lower court’s reasoning that the abortion ban was unconstitutional and saying it could be enforced.
“Appellees’ complaints against the abortion statutes are peculiarly within the field occupied by the Legislature and any problem concerning abortion should be solved by that body,” the appeals court ruling said. “We can only reiterate that we are not a super-legislature.”
Less than three weeks later, the U.S. Supreme Court ruled in Roe, and the appeals court reversed its earlier judgment. The law was then permanently blocked.
At a roundtable with U.S. Health and Human Services Secretary Xavier Becerra in Phoenix on Thursday, Planned Parenthood Arizona President and CEP Brittany Fonteno said the group would again provide abortions if the judge rules in their favor.
‘What we’re really looking for is that clarity, because we have to think about our providers,” Fonteno said.