PHOENIX — Attorney General Mark Brnovich is asking Gov. Doug Ducey to call a special legislative session to let lawmakers provide “additional clarity’’ about which of two abortion laws on the books they want enforced.
In a letter Wednesday to Anni Foster, the governor’s legal counsel, Assistant Attorney General Beau Roysden said his office has been arguing in court that a territorial-era statute outlawing virtually all abortions, except those to save the life of the mother, is the law in Arizona. He pointed out that SB 1164, signed earlier this year by Ducey, to ban abortions after 15 weeks specifically says it does not repeal the older law.
“However, the governor’s office has not taken a clear legal position on the current state of the law in Arizona,’’ Roysden wrote. Ducey told Capitol Media Services earlier this year he believes SB 1164 supersedes the earlier ban despite a specific provision in the bill to the contrary.
“I think we all want consistency and certainty in the law,’’ Brnovich said in an interview with Capitol Media Services, saying the letter represents the position of his office. “And ultimately, it is up to the governor and the Legislature to make any changes they believe are necessary.’’
Even if Ducey does not call lawmakers back to the Capitol, Roysden asked that Ducey’s office submit a legal brief in the current lawsuit playing out in Pima County about the issue that “clearly outlines’’ the governor’s legal position — and whether he no longer stands by the “express legal intent’’ of SB 1164 that it does not overrule the older ban.
Ducey press aide C.J. Karamargin said the letter is being reviewed.
The letter comes as Brnovich, in new legal filings, told Pima County Superior Court Judge Kellie Johnson she should not grant a request by Planned Parenthood Arizona to delay implementing her order from last week allowing the state to enforce the old law, even with the subsequent approval of SB 1164 that is also on the books.
One reason, he said, is that nothing in either statute mandates that any county attorney todo anything.
“It does not require them to prosecute anyone,’’ Brnovich told Johnson, even if the judge upholds her ruling that state law makes it a felony to perform an abortion, with a mandatory penalty of from two to five years in prison.
“The county attorneys are free to exercise full and independent prosecutorial discretion in deciding how to enforce Arizona’s various abortion regulations,” the attorney general said.
Brnovich said this is underlined by a statement Pima County Attorney Laura Conover made even before June of this year when the U.S. Supreme Court overturned Roe v. Wade, the 1973 ruling that women had a constitutional right to seek an abortion.
Conover had said her office will “do everything on our power to ensure that no person seeking or assisting in an abortion will spend the night in jail.’’
Brnovich described that as a definitive statement that Conover will not prosecute abortion-related crimes.
But Conover, in an interview with Capitol Media Services, said that misrepresents her position. She said her statement reflects on the handling of a criminal complaint against a medical provider, not on whether charges will be pursued.
“Where we do have some more operational power ... is how we would handle, God forbid, someone literally being brought in in handcuffs into jail,’’ Conover said.
She said that is unlikely to happen in Tucson where the City Council voted in June that “no physical arrest will be made by an officer for an alleged violation’’ of state abortion laws. But she said if someone is taken into custody, prosecutors will take care of that at an individual’s initial appearance in court.
“After the initial appearance, we will carefully examine any case brought, in honor of my obligations,’’ Conover said. “But no qualified provider acting in good faith will sit in jail while we undertake a careful examination.’’
Neither Arizona law calls for prosecutions of women who receive abortions; the Legislature voted last year to repeal laws that had made getting an abortion a crime.
Prosecutorial discretion aside, Brnovich told Johnson she reached the right legal decision after the Supreme Court overturned Roe.
With Roe gone, Johnson ruled, a 1973 state court injunction barring enforcement of the 1864 Arizona ban, issued based on Roe, could not stand, as that territorial-era law was never repealed and has remained on the books all this time.
She also rejected arguments SB 1164 superseded the still-on-the-books ban.
Brnovich also said there’s no reason for Johnson to delay implementation while Planned Parenthood files an appeal. He said that organization, which opposed the old law, always has been free to file a separate challenge to it.
And Brnovich said there’s another reason the judge should spurn the request by both Planned Parenthood and Conover to delay implementing her ruling.
“Abortion is permanent and results in the termination of an unborn life,’’ he said. All Johnson’s ruling does, Brnovich said, is keep the abortion ban in place while Planned Parenthood either seeks an appeal or files a new challenge to the law and asks for an injunction against its enforcement.
“Neither Planned Parenthood Arizona nor the county attorney give any weight to the interests of the unborn,’’ Brnovich said.
The judge is unlikely to rule before Friday.
Tim Steller's column: Arizona abortion law supporters got what they wanted: a ban
