Planned Parenthood: Arizona’s 1864 law banning abortions doesn’t override 50 years of regulating them

Planned Parenthood Arizona says that Arizona’s Civil War-era law banning abortions should go into effect — but that it should apply only to non-doctors because state legislators have spent the past 50 years creating a “complex” system of laws legalizing abortion access and regulating how abortions are performed by doctors. 

Calling Attorney General Mark Brnovich’s demand that Arizona courts criminalize nearly all abortions by reinstating an 1864 law “extreme,” Planned Parenthood Arizona says the court is bound to consider that law as part of the broader regulatory scheme that legislators have adopted since 1973, when the U.S. Supreme Court ruling in Roe v. Wade affirmed that pregnant people had a constitutional right to seek abortions.

“Indeed, the State will not be harmed if all laws the Legislature enacted are harmonized, rather than granting the AG an undemocratic windfall in the full reanimation of a long-dead law,” attorney Andy Gaona wrote in a motion to a Pima County Superior Court judge. “On the other hand, irreparable harm will befall Arizonans if this Court’s 1973 injunction is modified to allow the State to enforce (the 1864 law) in a manner that criminalizes nearly all abortions in the state.”

In 1971, the Planned Parenthood Center of Tucson sued the state, arguing that the territorial-era abortion ban violated both the U.S. and Arizona constitutions. A trial court agreed, but the Court of Appeals disagreed in 1973, reversing the lower court’s action blocking the abortion ban from being enforced. 

But 10 days later, the U.S. Supreme Court issued its ruling in Roe. The appellate court vacated its earlier ruling and issued a permanent injunction barring the state from enforcing the 1864 law. Last week, Brnovich asked Pima County Judge Kellie Johnson to remove that injunction, arguing that the U.S. Supreme Court’s ruling last month in Dobbs v. Jackson Women’s Health means the 158-year-old law should be enforceable — and outlaw abortion in Arizona except to save the life of the mother.

In a motion filed Wednesday opposing Brnovich’s request, Planned Parenthood Arizona said the AG is seeking “too blunt a remedy” that would effectively repeal numerous laws passed in the nearly 50 years since the injunction was issued. Those laws include one enacted this year allowing abortions up to 15 weeks of pregnancy. 

Courts are required to “consider the mosaic of laws regulating abortion that have been passed since 1973… and reconcile those laws with” the 1864 law, Planned Parenthood Arizona argued. 

The way to do that, Gaona wrote, is for the court to recognize that the laws passed after Roe allow doctors to legally perform abortions in Arizona — but in a heavily regulated environment — and the 1864 law bars only non-doctors from performing abortions.

“This interpretation properly gives effect to all the Legislature’s enactments,” he wrote. “And it stands far apart from the untenable interpretation the AG posits: that A.R.S. § 13-3603 — which is over one hundred years old — somehow preempts a host of other subsequently enacted laws and criminalizes nearly all abortions in Arizona, even abortions performed by physicians within the longstanding framework established by the Legislature.”

Doing what Brnovich wants, Gaona added, would “nullify decades of laws passed by the people’s representatives.”

And it’s clear that Arizona lawmakers didn’t ever intend for the 1864 law to be enforced, Planned Parenthood Arizona added: While there were 13 states that had “trigger bans” specifically designed to go into effect when Roe was reversed, Arizona was not among them. Instead, legislators this year passed a new law banning abortions after 15 weeks — and they rejected more stringent proposals, including a ban on abortions after 6 weeks and a total ban on medication abortions.

“The extreme position the AG is taking in his Motion — that nearly all abortions should be banned in the state — is squarely at odds with the intent of the Legislature,” Gaona wrote.