Arizona's abortion ban likely to see more court fights

Friday’s nationally-watched ruling by a Pima County judge allowing Arizona to enforce a ban on virtually all abortions is unlikely to end the legal fight.

And what Superior Court Judge Kellie Johnson didn’t say in her ruling could be as important as what she did say.

The judge made it clear the June decision by the U.S. Supreme Court overturning its historic 1973 Roe v. Wade ruling means states are now free to have their own abortion laws. And in Arizona, Johnson said that means a territorial-era law outlawing most abortions, never repealed after the 1973 ruling but enjoined since then, is once again enforceable.

But Johnson emphasized she was not ruling on the constitutionality of the old law, as she was dealing only with the 1973 injunction.

Moreover, Johnson didn’t rule on the legality of an Arizona law approved earlier this year by the Republican-controlled Legislature that allows women to terminate a pregnancy through the 15th week of gestation. All she said, in essence, is that the newer law does not supersede or replace provisions in the older one. In fact, legislators spelled out in the new law that they were not repealing the old law.

But as far as Republican Gov. Doug Ducey is concerned, the 15-week law he signed earlier this year took effect as scheduled on Saturday, Sept. 24, meaning there will be two abortion laws on the books — and no clear answer as to which is enforceable.

He isn’t the only one saying clarification is needed, if not from Johnson, then from an appellate-level court.

“This decision to lift the injunction on the previously enjoined abortion ban, without clarifying how Arizona’s other existing laws interact with it, has created chaos and confusion,’’ said a statement from Planned Parenthood of Arizona.

That isn’t the only legal issue left unsettled by Johnson’s ruling, said Brittany Fonteno, the organization’s president.

“Let me be clear, this is not the end of the fight,’’ she said. “This harmful ban has no place in Arizona and we will persist until that is achieved.’’

The ruling means the state’s abortion clinics must shut down and anyone seeking an abortion will have to go out of state. The ruling took effect immediately but might be appealed. Planned Parenthood and two other large providers said they were halting abortions.

Violations carry prison time

The law that Johnson has now allowed Republican Attorney General Mark Brnovich to enforce traces its roots back to 1864. It makes it a crime to perform an abortion except to save the life of the mother. The law, which carries a penalty of at least two and as many as five years in state prison, has no exceptions for rape or incest.

About the only change made to it in the last 158 years was a 2021 vote by lawmakers to exempt the pregnant woman from any penalty. Anyone else who performs an abortion, including doctors, remains subject to criminal charges.

Lawmakers never repealed the measure even after the Supreme Court voided abortion restrictions in 1973 and even after the state Court of Appeals, citing that ruling, enjoined its enforcement.

After 1973, Arizona law allowed abortions up until fetal viability, something that generally is thought to occur between weeks 22 and 24, a restriction that Roe and subsequent high court rulings allowed the state to enforce.

All that changed in June when the justices overturned Roe, which had established a constitutional right to abortion, and returned the power to regulate or ban abortions outright. And Johnson, ruling on a request by Brnovich, decided that decision required her to dissolve the injunction.

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She rejected arguments by attorneys from Planned Parenthood that abortion restrictions passed since 1973 effectively legalized the procedure and repealed the 1864 law. Johnson specifically said that includes SB 1164, the 15-week ban approved by Arizona lawmakers earlier this year on the belief the justices would uphold a similar Mississippi law but leave Roe untouched.

Nor was she willing to accept a legal theory offered by Planned Parenthood that the ban on performing abortions applies only to non-medical personnel, with doctors subject to the laxer 15-week limit.

Nothing in her ruling addresses whether that 15-week law also is legal, as Ducey contends it is.

“While there may be legal questions the parties seek to resolve regarding Arizona statutes on abortion, those questions are not for this court to decide here,’’ the judge wrote.

Pima County Attorney Laura Conover, a Democrat who sided with Planned Parenthood in the case, said her office now “will be looking at available legal remedies,’’ though she did not spell out what those are.

Aside from the 15-week law, there’s also the issue of the constitutionality of the near total ban.

Political reactions

There have been arguments advanced that the statute runs afoul of the privacy provision of the Arizona Constitution. Kris Mayes, the Democrat candidate for attorney general, has advanced that theory and promised not to enforce the law if elected. She faces Republican Abe Hamadeh in the November election.

Johnson’s ruling drew criticism from a variety of sources. Much came from Democrats running for office, including gubernatorial hopeful Katie Hobbs.

Hobbs and Mayes have sought to use the issue — and their foes’ support for outlawing abortion — to generate votes in what could be close general election contests. Hobbs said at a news conference Saturday that if elected governor, she will call on her first day in office for a special legislative session to repeal the abortion ban.

Her rival in the November election, Republican Kari Lake, previously called abortion “the execution of the baby in the mother’s womb,’’ but Lake neither issued a statement on Friday’s ruling nor responded to a request for comment.

Politics also figured into the condemnation of the ruling by the Committee to Protect Health Care, an association of doctors.

“Physicians are outraged by this court decision and the fact that Kari Lake has indicated she would work to enforce this cruel law as governor,’’ said Dr. Cadey Harrel, a Tucson family physician and the committee’s Arizona state lead.

“This dangerous and archaic ban will take away Arizonans’ autonomy over their own bodies and livelihood, and put them at risk of severe health issues and even death,’’ she said in her statement. “When complications arise during pregnancy, doctors need to be able to provide the full range of treatment options, including abortion, to ensure the best outcomes for our patients.’’

But Cathi Herrod, president of the anti-abortion Center for Arizona Policy, said there are dozens of “pregnancy resource centers’’ throughout Arizona that can provide help to women, from prenatal care and adoption support to car seats and strollers.

“Arizona can and will care for both mother and her unborn child,’’ Herrod said.

Brnovich also lauded the ruling. “We applaud the court for upholding the will of the legislature and providing clarity and uniformity on this important issue,’’ he said in a written statement. “I have and will continue to protect the most vulnerable Arizonans.’’