Arizona appeals court blocks Tucson judge's near-ban on abortions

PHOENIX — Abortions are once again legal in Arizona, at least for the time being.

The state Court of Appeals on Friday blocked implementation of the order issued last month by Pima County Superior Court Judge Kellie Johnson that said prosecutors can now bring charges against doctors who perform abortions. The only exception to that law — first enacted in 1864 — is to save the life of the mother.

There is a “substantial likelihood” that Planned Parenthood Arizona will succeed with its claim that Johnson should have considered all of the laws regulating — but not outlawing — abortions that state legislators have approved since the historic 1973 U.S. Supreme Court ruling in Roe v. Wade barring states from restricting a woman’s right to terminate a pregnancy, at least in the first trimester, Judge Peter Eckerstrom wrote in Friday’s ruling.

Those regulations passed by the Legislature specifically includes a measure approved earlier this year allowing abortions through the 15th week of pregnancy.

“Arizona courts have a responsibility to attempt to harmonize this state’s relevant statutes,” Eckerstrom wrote.

The judge also said the “balance of hardships” — a factor courts consider when weighing whether to stay an order — weighs strongly on the side of Planned Parenthood and against Attorney General Mark Brnovich, who was successful in getting Johnson to bring virtually all abortions in the state to a halt.

There is an “acute need of healthcare providers, prosecuting agencies, and the public for legal clarity as to the application of our criminal laws.,” Eckerstrom said.

In a prepared statement, Planned Parenthood said the ruling blocking Johnson’s decision allows the organization to pursue a full-blown appeal, “allowing abortion care to resume, effective immediately.”

But even Brittany Fonteno, the organization’s president, acknowledged this is just a temporary victory.

“While today’s ruling brings temporary respite to Arizonans, the ongoing threat of this extreme, near-total abortion ban that has no regard for the health care of those across the state, including survivors of rape or incest remains very real,” she said in a statement. “For over 100 days, Arizonans have experienced pure chaos and confusion and it has been traumatic for our physicians and staff who have been forced to notify patients that they can no longer care for them,” Fonteno continued. “The court’s decision to issue a stay while the legal process continues to unfold will allow Planned Parenthood Arizona to resume abortion care services.”

The battle surrounds which abortion laws are enforceable in Arizona.

One law, approved in 1864, all but bans the procedure. But its enforcement was blocked in 1973 by the state Court of Appeals after the Roe v. Wade decision.

Since that time, women in Arizona have been able to obtain an abortion through the point of fetal viability, considered to be between 22 and 24 weeks of pregnancy.

Once Roe was overturned, Brnovich asked Johnson to dissolve that stay.

Planned Parenthood objected, as did Pima County Attorney Laura Conover. They said the state can’t simply reenact the old ban given the various laws regulating the procedure adopted since, ranging from requirements for ultrasound and a 24-hour waiting period.

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More to the point is that 15-week ban, approved earlier this year by the Republican-controlled legislature and signed by Gov. Doug Ducey. It was modeled after a Mississippi law that abortion foes believed the Supreme Court would uphold.

But the justices in June went further, voiding Roe — and returning the decision to each state.

Johnson, however, sided with Brnovich, saying the only issue for her is whether the 1973 injunction is no longer valid after the latest U.S. Supreme Court ruling.

Everything else, Johnson said, is legally irrelevant.

Eckerstrom, however, said the appellate court believes she may be wrong.

Friday’s order gives Planned Parenthood a chance to argue, as Eckerstrom said, there is a way to “harmonize” both the old law, which never was repealed and remains on the books, and the 15-week ban.

The way Planned Parenthood sees it, both laws actually can coexist, with the 15-week ban regulating abortions performed by doctors and the territorial-era ban, with its mandatory prison term of two to five years, applying to anyone without a medical license.

A decision could take weeks.

The appellate court has scheduled a conference on Tuesday to determine how quickly to hear arguments.

While Friday’s order is an interim victory, Fonteno said it is one of several steps.

She said the old law needs to be “taken off the books for good.”

There was no immediate comment from Brnovich, who has called on state lawmakers to clarify the state’s abortion law.

The legal fight actually has placed Planned Parenthood in an awkward situation.

It had opposed the 15-week ban, seeking to keep the situation where abortions could be performed up to viability. But now, with that 15-week law on the books, it had to choose between that restriction and the territorial-era law.