Near total abortion ban in Arizona paused for now

PHOENIX — Arizona women who are no more than 15 weeks pregnant will be able to continue to get legal abortions through at least the end of the year, if not beyond.

Maricopa County Superior Court Judge Joseph Mikitish signed an order Tuesday barring Attorney General Mark Brnovich from trying to enforce a territorial-era statute that outlaws virtually all abortions, for at least 45 days after there has been a final ruling in a challenge to that statute brought by Planned Parenthood Arizona.

That case is now before the state Court of Appeals, which is not due to get all legal briefings before Nov. 17. And there then could be a hearing.

After that, whichever side loses is virtually certain to seek Supreme Court review, which could take weeks.

And even if the justices side with Brnovich, his 45-day promise takes the issue into 2023.

Tuesday’s order was a result of a deal between Brnovich and attorneys for the Arizona Medical Association and Dr. Paul Isaacson, who performs abortions. They have their own separate challenge in Mikitish’s court to the territorial-era law that bans abortions except to save the life of the mother.

The deal benefits Brnovich because it means his attorneys won’t have to simultaneously defend two separate lawsuits on the legality of that territorial law. And it precludes the possibility of two conflicting rulings.

What the challengers in the Maricopa County case get is not having to pursue their lawsuit claiming that abortions performed by doctors are legal through the 15th week of pregnancy. Instead, they can wait to see whether Planned Parenthood achieves the same result.

At the same time, it preserves their ability to renew their lawsuit, even if the Supreme Court ultimately rules against Planned Parenthood.

That gives them the chance to advance their own legal theories about why abortions performed by doctors should remain legal through at least 15 weeks. And, if nothing else, it gives them a new opportunity to seek a further stay of the territorial-era law even longer into 2023.

The deal — and the delay — make sense said Gail Deady, an attorney with the Center for Reproductive Rights, which is representing Isaacson and the Medical Association.

She said Arizona abortion providers “have been in limbo” since the U.S. Supreme Court in June overturned Roe v. Wade and its constitutional right to terminate a pregnancy. Instead, the justices said it is up to each state to set its own laws.

“Providers and the patients they serve can finally breathe a sigh of relief for now knowing that they will not immediately be thrown back into chaos and face severe punishment for doing their jobs under the state’s zombie law,” she said.

Brnovich, who has insisted in court that the territorial-era law and its near ban is enforceable, also praised the agreement not to try to prosecute anyone for violating it while the cases are pursued.

“We know this is a very difficult and emotional issue for many Arizonans,” Brnovich said. And he said this isn’t about getting a particular result.

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“Our goal has always been about pursuing clarity and consistency in the law,” he continued. “We will now have that while the litigation moves forward in the courts.”

Both cases revolve around the fact that there are two conflicting laws on when abortions can be performed in Arizona.

The law that traces its roots back to 1864 never was repealed and remains on the books even after the U.S. Supreme Court ruled in Roe v. Wade. That 1973 ruling later resulted in the Arizona Court of Appeals enjoining its enforcement.

In June, however, the high court overturned Roe, saying it is up to each state to enact its own abortion restrictions.

Only thing is, state lawmakers earlier this year approved SB1164 restricting abortion to 15 weeks.

That was based on the premise the Supreme Court would not totally overturn Roe but instead simply uphold a similar 15-week ban enacted in Mississippi. But lawmakers also inserted language into SB1164 saying they were not repealing the territorial-era law.

Based on that, Brnovich sought to reopen the state court case, dissolve the injunction and allow enforcement of that old law regardless of SB 1164.

Planned Parenthood interceded, telling Pima County Superior Court Judge Kellie Johnson she should “harmonize” both the old and new laws. Their attorneys say that means interpreting SB1164 to allow doctors to terminate pregnancies up through 15 weeks, with the territorial-era law and its prison term of up to five years applying to anyone else who performs an abortion.

Johnson sidestepped that argument, saying her only job was to decide whether to dissolve the 1973 injunction, which she did.

The Court of Appeals stayed that ruling earlier this month, saying there was a “substantial likelihood” that Johnson had erred in not considering the effect of the legislature’s enactment of the 15-week ban.

The appellate judges are now weighing legal arguments from both sides.

Meanwhile the attorneys for the Medical Association and Isaacson filed their own lawsuit asking Mikitish to rule that both laws are effective — but that the legislature, in enacting various post-Roe regulations including SB 1164, meant to keep the procedure legal for 15 weeks if performed by a medical professional.

The advantage they have over Planned Parenthood is the case is a simple legal argument not complicated by arguments over the legality of the 1973 appellate court injunction.

Mikitish had scheduled a hearing for this coming week to hear arguments and potentially rule. Now all that is put off until at least next year. And that will occur only if the state Supreme Court rules against Planned Parenthood.