Pima judge looks at lifting 50-year-old order protecting Arizona abortion rights

A judge in Tucson will decide whether to lift a 1973 injunction that protects abortion rights in Arizona, after Attorney General Mark Brnovich moved to resurrect a ban from the state's territorial days. If the order is lifted, the state could begin enforcing an 1864 law making abortion illegal and allowing prosecutors to pursue abortion providers.

While Brnovich, a Republican who just lost in the GOP primary for U.S. Senate, wants the state to be able to enforce the near-total ban on abortions in Arizona, reproductive health organizations have moved to have a Superior Court judge in Pima County declare that because the state has regulated the practice for 50 years, the law recognizes the right to an abortion.

During a 45-minute hearing Friday afternoon, Judge Kellie Johnson listened to both sides, and said she would take the matter under advisement, and would wait to issue a ruling until September 20 — allowing two doctors linked to the case that began nearly 51 years ago the opportunity to submit arguments to the court.

The move to begin enforcing the Civil War-era law came in mid-July, when Brnovich pushed the court in Pima County to lift the injunction, arguing a decision from the U.S. Supreme Court during the summer should allow state officials to again enforce Arizona's abortion ban.

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 United States. Following the decision, conservatives moved to re-codify and revive older bans on reproductive choice — including Brnovich, who moved to have the court rule that Arizona's 1864 ban on abortion can be enforced.

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

Under that law, anyone who facilitates a procedure that causes a miscarriage or abortion can face two to five years in prison. While Arizona’s law would make 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. "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 criticized the Republican's move to revive what they called a "zombie law."

Planned Parenthood of Arizona immediately challenged Brnovich's move, writing the court "has a duty to harmonize all of the Arizona Legislature’s enactments as they exist today." They argued that over the last 50 years, the legislature has created a regulatory scheme that should not be undone by the Supreme Court's decision, and said the court should seek to balance all the laws, "rather than granting the AG an undemocratic windfall in the full reanimation of a long-dead law."

The case is before a judge in Pima County Superior Court because the 1971 case at issue was filed here. It resulted in several years of legal wrangling, ending with an injunction that blocks enforcement of the territorial-era law quickly being entered after Roe v. Wade became the law of the land.

During the hearing Friday, state Solicitor General Beau Roysden III said there had been "a lot of mischaracterization of the law." While the law goes back to the state's 158-year-old territorial law, Roysden said the Legislature enacted a law in 1977, "long after women had the right to vote, long, you know, after Roe v. Wade."

Roysden argued the court "should not check its common sense at the door. It's very obvious what happened," he said.

Sarah Mac Dougall, an attorney for Planned Parenthood Federation of America, said the Supreme Court's decision has affected the state's laws, but argued that over the last five decades, the Legislature has created a "very well-defined" set of laws, "given force and meaning to all statutes involved."

She said that a repeal now "creates absurd results" and argued the court "should not go back in time."

Sam Brown, Pima County's chief civil deputy county attorney, said that even if the injunction were to be lifted, there would still be additional confusion on when an abortion would be allowed.

"The law is Arizona must be clear and concrete to prevent arbitrary discriminatory enforcement," he said. He argued there are 15 counties, all with "different interpretations" of whether the old law allows them to arrest someone for performing or accessing abortion. He also noted that in Michigan, a court recently squashed a law that allowed prosecution of abortion providers.

Pima County Attorney Laura Conover, the top local prosecutor and an elected Democrat, has said she opposes prosecuting anyone over abortions. While Pima County defended the earlier state law in the 1970s, it has now "reversed course," she said in July.

"While the A. G. now seeks to resume prosecutions, we opposed: joining Planned Parenthood," she tweeted. "I don’t know that I’ve ever filed a motion potentially impacting the health & safety of so many countless souls, statewide."

"Our city police revised their general orders, my sheriff declared he is not the abortion police and I have done everything possible to reassure our community that the health and safety of all remains my number one priority," Conover said.

In his motion, Brnovich argued the law "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."

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."

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."

Outside the court, around two dozen people rallied for abortion rights, including Tucson Mayor Regina Romero, who called Brovich's push to outlaw abortion "extreme."

"We will continue to rally and march, but most importantly, organize and organize voters in Arizona," Romero said.

Romero, a Democrat, noted that Brnovich was not in the courtroom Friday afternoon, "well because, you know, he's not running for office anymore," she said, referencing Brnovich's failed Senate bid.

"I'm glad he didn't show up today, but let's kick out his extremist agenda from Pima County and from the state of Arizona," she said.

Brittany Fonteno, president of Arizona Planned Parenthood, said Brnovich has attempted to "resurrect a cruel and inhumane, 150-year-old law that would criminalize doctors and put lives at risk in our communities."

"For nearly two months, Arizonans have been living in a state of crisis and confusion at the hands of the attorney general who has abdicated his responsibility  to let us know what our rights are when it comes to bodily autonomy," Fontero said. "He has purposefully sown confusion over what laws are in effect across our state, in an attempt to create a chilling effect—one that has made our providers and many others in our communities, too afraid to follow their oath to provide essential health care that their communities need and deserve."

Dr. Jill Gibson, the medical director for Planned Parenthood, said it was "simply devastating" that "extremist anti-abortion politicians in our state—who have no medical knowledge or training and haven't lived their life of the patient in the exam room—believe they should be able to make medical decisions for my patients."

"The Supreme Court's decision and the chaos and confusion that has created," she said, "has made an extremely safe, straightforward and normal medical procedure inaccessible for so many people. Taking away abortion access isn't a theoretical talking point, this is real life for our patients," Gibson said.

Judge Johnson also has to consider whether to allow Dr. Eric Hazelrigg to intervene in the case on the side of those pushing the court to restore the ban. Hazelrigg would replace Clifton R. Bloom, who was made a “guardian ad item for the unborn child of Plaintiff Jane Roe and other unborn infants similarly situated” by the court in 1971.

Hazelrigg is represented by Kevin Theriot, a lawyer for Alliance Defending Freedom — a Scottsdale-based conservative Christian law firm.

Planned Parenthood opposed the motion.

Conover filed a joinder with Planned Parenthood in the case, arguing that lifting the 1973 injunction "without the necessary modification to harmonize" with laws passed in the intervening decades "will deny Arizonans of ordinary intelligence a reasonable opportunity to know what is prohibited."

She said that without court guidance, a conflict will arise and lead to "likely arbitrary enforcement in violation of Arizonan's Due Process Rights."