Attorney general seeks delay in Arizona's 1864 abortion ban enforcement

PHOENIX — Democratic Attorney General Kris Mayes is making one last attempt to delay enforcement of the 1864 Arizona law that outlaws all abortions except to save the life of the mother.

In a new filing, Mayes asks the Arizona Supreme Court to delay issuing its mandate — formal enactment of its April 9 ruling — for up to 90 days. She said that will give her time to decide whether to seek review by the U.S. Supreme Court.

Under normal circumstances, this kind of case would not make its way into federal court.

That’s because the ruling the state court issued was based strictly on an interpretation of two potentially conflicting state laws, the 1864 statute and a 2022 measure that allows abortion until the 15th week of pregnancy. The state court, in a 4-2 ruling, said the older law trumps.

But Mayes is eyeing the fact that the justices cited another Arizona law in reaching their conclusion, one that says an unborn child at every stage of development has “all rights, privileges and immunities available to other persons, citizens and residents of this state,’’ subject only to federal constitutional restrictions and U.S. Supreme Court decisions.

Mayes pointed out that in July 2022, U.S. District Court Judge Douglas Rayes, in a separate case, declared that wording unconstitutionally vague and unenforceable. Rayes’ federal court ruling may provide the legal reasoning for Mayes to ask the U.S. Supreme Court to review — and overturn — the Arizona Supreme Court’s decision.

“The Arizona Supreme Court’s decision in the 1864 case relied on a statute that a federal court has enjoined as unconstitutionally vague,” Mayes said. “This raises serious federal questions under the Due Process and Supremacy Clauses’’ of the U.S. Constitution.

Trying to buy time

The filing comes as state senators are set to vote Wednesday on repeal of the 1864 law, following the House’s vote last week in favor of repeal.

But even if approved by both chambers of the Republican-controlled Legislature, and signed as expected by Democratic Gov. Katie Hobbs, the repeal could not take effect until 91 days after the current legislative session ends. At this point, there is no deadline for that to happen.

Without a further delay like the one Mayes is seeking, the Arizona Supreme Court ruling could become effective in late June.

Planned Parenthood Arizona says that could result in a “blackout’’ where no abortions could be performed until either the repeal becomes effective — sometime in August or September — or unless and until voters approve an initiative to put a right to abortion in the Arizona Constitution.

Even if that initiative qualifies for the ballot and voters approve it on Nov. 5, nothing can happen until the election results are certified. That is scheduled for Nov. 25.

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All that leaves Mayes, whose office sided with Planned Parenthood in unsuccessfully urging the court to accept the 15-week law, trying to buy time.

How it’s unfolded

The state justices — four of the six who heard the case — acknowledged that Arizona legislators approved a 15-week ban in 2022. That law, actually proposed by abortion foes, was in anticipation that the U.S. Supreme Court would uphold a similar limit enacted in Mississippi.

Instead, however, later in 2022 the nation’s high court overturned its precedent in 1973’s Roe v. Wade that women had a constitutional right to terminate a pregnancy. Under the 1973 ruling, abortion was allowed in Arizona through fetal viability, generally considered between 22 and 24 weeks, with some options beyond that.

Based on the 2022 Supreme Court decision overturning it, Republican Mark Brnovich, then Arizona’s attorney general, got Pima County Superior Court Judge Kellie Johnson to rule that the state’s 1864 law, never repealed after the Roe decision, was again enforceable.

That brought all abortions to a halt until the Arizona Court of Appeals disagreed, allowing the 15-week law to take effect. But that, in turn, was overruled by the April 9 state Supreme Court decision.

Last week the House voted 32-28 to repeal the old law; identical legislation is set for Senate debate Wednesday.

Law firm: “Protect life”

Mayes’ attempt to keep the 15-week law in place as long as possible is likely to get a fight from the anti-abortion Alliance Defending Freedom.

That Christian law firm represents Dr. Eric Hazelrigg, medical director of Choices Pregnancy Center. He was given permission by courts to represent the interests of unborn children after Mayes, taking office in January 2023, had the Attorney General’s Office switch sides in the legal battle.

“Rather than pushing a pro-abortion agenda and pouring resources into promoting a procedure that takes the lives of the most vulnerable, our government officials should be doing everything they can to protect life,’’ said Jake Warner, senior counsel for Alliance Defending Freedom.

In his 2022 ruling on an unrelated abortion case, federal court judge Rayes said the language granting an unborn child the “rights, privileges and immunities available to other persons’’ was unenforceable, as it gives no clue to doctors what they can and cannot do.

Mayes said that’s important to the ruling on the 1864 law because Justice John Lopez, in writing the April 9 decision, specifically cited that section of law — the one Rayes enjoined — in explaining why the majority of the state justices think the Legislature never never intended for the 15-week law to supersede the 1864 statute.