Arizona Attorney General Mark Brnovich is asking a Pima County judge to immediately restore his power and the power of local prosecutors to bring criminal charges against doctors who perform abortions.

In legal papers filed Wednesday, Brnovich argues that the only reason the Arizona Court of Appeals enjoined enforcement of the state’s anti-abortion law was the 1973 U.S. Supreme Court ruling in Roe v. Wade. That historic decision and a follow-up ruling in a 1992 case called Casey v. Planned Parenthood declared that women have a constitutional right to terminate a pregnancy prior to viability of the fetus.

But those decisions were overruled by the justices late last month in the case involving the validity of a Mississippi law, Brnovich said.

“The U.S. Supreme Court held that the Constitution does not confer a right to abortion,’’ the Republican attorney general said.

He pointed out that Justice Samuel Alito wrote that “Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.’’

“The (Arizona) law has now returned to what it was prior to Roe,’’ Brnovich said.

The only thing blocking that, he said, is the injunction that he now wants dissolved.

Timing, opposition questions

How quickly that can happen remains unclear.

Brnovich has asked for oral arguments allowing his staff members to make their case directly to Superior Court Judge Kellie Johnson. No date has been set for arguments.

There’s also the question of opposition.

The original injunction was obtained by Planned Parenthood Center of Tucson, an organization that no longer exists.

But Planned Parenthood Arizona will file a response to “explain to the court why it should deny the attorney general’s latest attempt to play politics with people’s lives,” its president, Brittany Fonteno, said Wednesday.

“Attorney General Brnovich has proven once again that he is out of touch with the majority of Arizonans who support safe and legal abortion,’’ she said in a written statement.

And Gail Deady, an attorney with the Center for Reproductive Rights, which represents doctors and others in abortion issues, called it “outrageous that Arizona’s attorney general is trying to revive this zombie law that has been blocked.’’

“Arizonans’ personal health decisions, lives and future should not be dictated by a century-old, draconian law,’’ Deady said in a prepared statement, saying her organization “will continue to stand by Arizonans’ fundamental right to access essential healthcare.’’

Only Pima County at stake?

There’s another legal issue.

Brnovich contends the injunction covers only the ability of his office and Pima County prosecutors to enforce the abortion ban that dates as far back as 1901 — and only in Pima County.

He asserts the old pre-Roe law is now in effect in the other 14 counties and prosecutors are free to bring criminal charges against doctors who violate it.

That issue, however, has never been litigated. And it may not be for some time, as Planned Parenthood and other key abortion providers have halted performing the procedure until the state of the law is clarified.

Brnovich, in his new legal filing, said there’s nothing unclear about the law — and the desire of state lawmakers to outlaw all abortions.

“The Arizona Legislature has never acquiesced in the conclusion that the former (pre-1973 law) is unconstitutional,’’ he wrote. “Rather, in anticipation that the U.S. Supreme Court could overturn Roe, the Legislature has repeatedly preserved Arizona’s statutory prohibition on performing abortions except to save the life of the mother.”

For example, Brnovich noted, lawmakers recodified the exact same 1901 statute just four years after Roe, preserving the same language but just changing the statute number.

And then there was a vote earlier this year by the Republican-controlled Legislature to ban abortions after 15 weeks, something he said lawmakers did “when it was uncertain how the Supreme Court would rule’’ in the Mississippi case. But Brnovich pointed out even that measure spelled out it did not repeal or overrule the law that was in effect when Roe was decided.

All of that, he said, requires the trial judge to issue an order reopening the case and dissolving the injunction.

Background of the case

The case dates back to 1971 when Planned Parenthood Center of Tucson, 10 doctors and an anonymous pregnant woman who sought an abortion filed suit.

In the original paperwork, the plaintiffs sought to enjoin the state from enforcing the law, alleging that “except for the risk of criminal prosecution’’ Planned Parenthood would refer some of its clients to physicians to perform the procedure. The lawsuit acknowledged that “the procedures were not necessary to save the lives of such pregnant women.’’

Pima County Superior Court Judge Jack Marks agreed with the challengers.

“A fetus is not a person entitled to Fourteenth Amendment (equal protection) rights and does not have constitutionally protected rights,’’ he wrote. The judge also said the state’s ban “is overbroad and violates the fundamental rights of marital and sexual privacy of women.’’

The Court of Appeals initially overturned his ruling, saying, among other things, that the fact the law does not have exceptions for rape or incest does not make it overly broad. The judges also rejected arguments the law interferes with the right of religious freedom or discriminates against poor women.

But the court reversed its position in 1973, after the U.S. Supreme Court decision, with the judges saying they were bound by the Roe ruling.

Planned Parenthood won't resume abortions in Pima County

The leader of Arizona's largest abortion provider said Tuesday her organization will not resume the procedures in Pima County even though a federal judge has blocked a fetal "personhood" law they feared could lead to criminal charges against doctors and others.

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