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Brnovich suit to allow enforcement of 1864 Az abortion ban set for Aug. hearing
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Brnovich suit to allow enforcement of 1864 Az abortion ban set for Aug. hearing

Case over longstanding injunction against measure to be heard in Pima County court

  • Protesters filing through Downtown Tucson after the U.S. Supreme Court overturned Roe v. Wade in June.
    Paul Ingram/TucsonSentinel.comProtesters filing through Downtown Tucson after the U.S. Supreme Court overturned Roe v. Wade in June.

A hearing in Planned Parenthood v. Brnovich — which will decide whether a Civil War-era ban on abortion in Arizona can be enforced — will be heard August 19 in Pima County Superior Court. 

Judge Kellie Johnson set the date during a brief virtual status conference in the case on Friday.

Planned Parenthood Arizona is challenging Brnovich’s move to return to enforcing an 1864 law that makes it a crime to provide nearly all abortions in Arizona. The reproductive health care organization says the law, if it is again enforceable following the U.S. Supreme Court tossing out Roe v. Wade, should only apply to people who are not licensed physicians because the state Legislature has spent the past 50 years passing abortion regulations.

Brnovich, a Republican, seeks to vacate the injunction that was put in place by a Planned Parenthood lawsuit that was filed in Tucson in 1971.

The Supreme Court ended the federal constitutional right to an abortion almost a month ago when they decided on the case of ​​Dobbs v. Jackson Women's Health Organization, which overturned Roe v. Wade after almost 50 years.

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

Under the 158-year-old 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 earlier in the month.

The upcoming Pima County hearing will decide whether to end a permanent injunction issued shortly after Roe V. Wade was decided in 1973, with a state appeals court blocking enforcement of the territorial ban on abortion.

Brnovich filed to have a guardian ad litem appointed in the case, to advocate on behalf of the “unborn child of Jane Roe and all other unborn infants.” Such representatives are picked by judges to provide information on behalf of parties who otherwise do not appear in court.

The state Legislature earlier this summer, before the Dobbs ruling, passed a ban on abortions for anyone pregnant for longer than 15 weeks, which is set to take effect in September. But Brnovich and other Arizona officials have “refused to state which abortion laws are in effect,” Andy Gaona, attorney for Planned Parenthood, wrote in a court motion.

Abortion services across the state have “brought… to a halt,” Goana wrote, and Brnovich is requesting that the Pima County Superior Court end the permanent injunction that bars the state from enforcing the 1864 law.

The permanent injunction came after a ruling and an appeal in the 1971 lawsuit brought by Planned Parenthood Center of Tucson.

The trial court ruled that the territorial law violated the U.S. and Arizona constitutions, but its decision was overturned by an appellate court 10 days before Roe v. Wade was decided. The appellate court issued then issued the permanent injunction against the abortion ban shortly after that Supreme Court ruling.

Now, Planned Parenthood wants to allow the ban to be “harmonized” with the state abortion laws that have followed Roe v. Wade “rather than granting the AG an undemocratic windfall in the full reanimation of a long-dead law,” Goana wrote.

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

The injunction has been in place for so long, most of the doctors who took part in the early '70s legal action have died.

The attorneys representing Brnovich and Planned Parenthood Arizona have until August 4 to file any other motions, the judge said.

Bennito L. Kelty is TucsonSentinel.com’s IDEA reporter, focusing on Inclusion, Diversity, Equity and Access stories, and a Report for America corps member supported by readers like you.

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