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AG Brnovich moves to re-impose 1864 ban on nearly all abortions in Arizona

Law from territorial days should again be in effect, state AG tells court

Arizona Attorney General Mark Brnovich urged a court in Pima County Wednesday to lift an 51-year-old injunction that protects abortion rights, arguing the Supreme Court's recent decision over abortion should allow officials to again enforce a ban from the state's territorial days.

In a 16-page filing Wednesday, Brnovich moved to remove a legal hurdle blocking the state from enforcing a law from 1864 making abortion illegal and allowing prosecutors to pursue abortion providers. "We believe this is the best and most accurate state of the law," Brnovich said in a press release. "We know this is an important issue to so many Arizonans, and our hope is that the court will provide clarity and uniformity for our state."

Abortion rights supporters said the Republican's move to revive a "zombie law" is "outrageous."

In June, the Supreme Court ruled in a 5-4 decision to radically alter abortion rights by ruling for Mississippi in a case challenging Roe v. Wade — the landmark 1973 decision that granted abortion rights in the U.S. Following the court's decision, conservatives moved to re-codify and revive older bans on reproductive choice — including Brnovich, who moved to revive Arizona's 1864 ban on abortion.

Five days after the Supreme Court's decision, Brnovich said the state's 158-year-old law remains in effect.

Under the law, anyone who facilitates a procedure that causes a miscarriage or abortion can face two to five years in prison. While Arizona’s law makes it a crime to aid a woman in a miscarriage or abortion, the law does allow for such procedures if they are “necessary to save her life.”

"Our office has concluded that the Arizona Legislature has made its intentions clear regarding abortion laws," Brnovich wrote on Twitter.

The Civil War-era law, he wrote "is back in effect and will not be repealed in 90 days by SB 1164," he said referring to a new bill passed by the Legislature this summer that further restricts abortions after 15 weeks. "We will soon be asking the court to vacate the injunction which was put in place following Roe v. Wade in light of the Dobbs decision earlier this month."

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"It is outrageous that Arizona's Attorney General is trying to revive this zombie law that has long been blocked. Arizonans' personal health decisions, lives, and futures should not be dictated by a century-old, draconian law," said Gail Deady, staff attorney at the Center for Reproductive Rights.

"The U.S. Supreme Court's decision to overturn Roe v. Wade has already caused absolute chaos in states like Arizona, and this move only adds to the mass confusion on the ground," she said. "Arizona's multiple, conflicting abortion laws on the books have trapped providers and patients in limbo, leaving them without any sense of whether they can provide and access abortion care. We will continue to stand by Arizonans' fundamental right to access essential healthcare."

Arizona's law, which remains on the books but has not been enforced since 1973, states that anyone who provides, supplies or administers" any "medicine, drugs or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless it is necessary to save her life, shall be punished by (imprisonment) in the state prison for not less than two years nor more than five years."

The law was first passed as the Territory of Arizona set up a government after being split from New Mexico Territory. The measure was re-codified in 1901 by the Territorial Legislature.

Arizona's territorial law remained in place through 1971, when 10 Tucson doctors filed a challenge on behalf of a Tucson woman who sought to end her pregnancy. While the case wound through the state's courts, the Supreme Court ruled in Roe v. Wade that abortion was legal, and in 1973 the court in Pima County permanently blocked the Arizona Attorney General and Pima County Attorney's Office from enforcing the territorial-era law.

Even after the courts barred enforcing the law, the state Legislature again re-codified the ban on nearly all abortions in Arizona in 1977.

"We believe this is the best and most accurate state of the law," Brnovich said. "We know this is an important issue to so many Arizonans, and our hope is that the court will provide clarity and uniformity for our state."

However, following the court's decision against Roe v. Wade—and a 1992 decision affirming abortion rights known as Planned Parenthood v. Casey—Brnovich argued that Arizona's territorial law should be in effect. He praised the Supreme Court's decision, writing that the decision led by Justice Samuel Alito "rightfully sent the issue back to our elected representatives."

A Republican, Brnovich's campaign to become the GOP's candidate to challenge U.S. Sen. Mark Kelly for his seat has stalled. He faces multiple opponents, and appears likely to lose to Peter Thiel-darling Blake Masters.

While Arizona legislators have pushed new restrictions on abortion rights, banning the procedure after 15 weeks, Brnovich wrote the Legislature painstakingly ensured the older law could still be in effect, because they took "affirmative steps to ensure their continuing validity in the event that Roe was overruled."

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A woman protests for abortion rights on July 4, 2022, in Downtown Tucson.

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