PHOENIX — The anti-abortion Alliance Defending Freedom urged the Arizona Supreme Court Tuesday to immediately order the 1864 law again enforceable, saying even a temporary restoration of the law would prevent 25 abortions a day.
In new legal documents, alliance attorney Jacob Warner told the justices there is no legal basis for Attorney General Kris Mayes to ask for more time before the court’s April 9 decision takes effect and reinstates the law banning abortions except to save the life of the mother. Mayes said she wants to study whether to seek review by the U.S. Supreme Court.
“Any appeal is futile,’’ and there is not a “reviewable federal issue,” said Warner. His organization, a Christian law firm, won the lawsuit to reinstate the 1864 law on behalf of Dr. Eric Hazelrigg, medical director of Crisis Pregnancy Center, who was appointed by courts to represent the interests of unborn children.
Warner acknowledged the Legislature gave final approval last week to repealing the 1864 law. When the repeal eventually takes effect, that will leave in place a 2022 state law allowing abortion until the 15th week of pregnancy.
He also pointed out, however, that the Legislature had the option of approving the repeal with an “emergency clause,’’ which would have allowed it to take effect immediately.
“But lawmakers refused to exercise that power,’’ Warner wrote, meaning the repeal will take effect 91 days after the legislative session ends.
“Far from viewing the repeal as medically urgent, the legislature refused to immediately effectuate it for public health or any other reason,’’ he said. “That was its call to make.’’
What is also true is that there is no emergency clause because supporters of repeal lacked the necessary two-thirds vote in the 60-member House and 30-member Senate to enact it. Instead, the repeal bill cleared the House on a 32-28 margin; the vote in the Senate was 16-14.
“In truth, the legislature had insufficient votes to prioritize abortion providers over unborn children for the next few months,’’ Warner told the court.
That relates to what he said would be the effects of the court delaying enforcement of its ruling.
“Public health records show that more than 10,000 unborn Arizona children are aborted each year,’’ he told the justices.
“That’s over 25 abortions per day,’’ he said, for whatever period the old law is once again allowed to be enforced before the legislative repeal becomes effective.
Of abortions performed in Arizona in 2022, 3.3% were done after 15 weeks of pregnancy, health department data shows. Nearly two-thirds of abortions were performed at or before 8 weeks of pregnancy. Fetal viability is generally considered to be between 22 and 24 weeks.
Warner said that Mayes and Planned Parenthood Arizona, the original plaintiff in the lawsuit, “do not mention, much less weight the threat to these lives in seeking delay.’’
Warner pointed out that there was a pause in legal abortions in November 2022. That is after Pima County Superior Court Judge Kellie Johnson sided with then-Attorney General Mark Brnovich and concluded the decision by the U.S. Supreme Court to overturn Roe v. Wade returned the power to regulate abortions to each state.
Johnson pointed out that lawmakers never repealed the 1864 law even after Roe, declaring a constitutional right to abortion, was decided in 1973.
The judge’s decision stood for only about a week until the state Court of Appeals issued a stay. That allowed legal abortions, until 15 weeks, to resume.
That has been the case ever since.
But now the appellate court ruling has been overturned. The only remaining question is when the old law can again take effect — for whatever period of time before the repeal becomes the law in Arizona.
Warner said that neither Planned Parenthood or Mayes presented any evidence of harm to abortion providers during that week in 2022 when the law was enjoined.
As to taking the issue to the U.S. Supreme Court, Warner said there is no legal basis.
Mayes, in seeking a delay, argued that the justices here, in voting 4-2 to reinstate the old law, relied on more than the fact that Roe was overturned.
She pointed out that the majority opinion cited another Arizona law. It says an unborn child at every stage of development has “all rights, privileges and immunities available to other persons, citizens and residents of this state,’’ subject only to federal constitutional restrictions and U.S. Supreme Court decisions.
But, Mayes noted, U.S. District Court Judge Douglas Rayes, handling another abortion case, ruled in July 2022 that wording is unconstitutionally vague and unenforceable.
“The Arizona Supreme Court’s decision in the 1864 case relied on a statute that a federal court has enjoined as unconstitutionally vague,’’ Mayes said. “This raises serious federal questions under the Due Process and Supremacy Clauses’’ of the U.S. Constitution.
Warner told the justices all that is irrelevant to their conclusion the old law is enforceable.
“This court’s ruling does not turn on that citation’’ of what Rayes ruled, he said. Warner said Mayes has acknowledged there may yet be other grounds to have the old law declared void.
Mayes has through Thursday to respond.
