Arizona judge rules state can enforce near-total abortion ban


Protesters march around the Arizona Capitol in Phoenix after the Supreme Court’s decision to overturn Roe v. Wade. A new Arizona law banning abortions after 15 weeks of pregnancy goes into effect Saturday, September 24.

Ross D. Franklin/AP

Arizona can enforce a near-total ban on abortions that have been stalled for nearly 50 years, a judge ruled Friday, meaning clinics across the state will have to stop providing the procedures to avoid criminal charges being filed against doctors and other medical workers.

The judge lifted a decades-old injunction that had long blocked enforcement on the books since before Arizona became a state that bans nearly all abortions. The only exemption is if the woman’s life is in danger.

The ruling means people wanting an abortion will have to travel to another state to get one. An appeal of the decision is likely.

Pima County Superior Court Judge Kellie Johnson’s decision came more than a month after hearing arguments on Republican Attorney General Mark Brnovich’s request to lift the injunction. It was in place shortly after the 1973 United States Supreme Court decision in Roe v. Wade, that women had a constitutional right to abortion.

The near total ban on abortion was enacted decades before Arizona was granted statehood in 1912. The lawsuits were halted after the injunction was issued following the Roe decision . Even so, the legislature re-enacted the law several times, the last in 1977.

Assistant Attorney General Beau Roysden told Johnson in an August 19 hearing that since Roe was overturned, the only reason for the injunction blocking the old law is gone and it should allow it to be enforced. Under this law, anyone who performs a surgical abortion or provides medication for a medical abortion can face two to five years in prison.

An attorney for Planned Parenthood and its Arizona affiliate argued that allowing the pre-state ban to apply would render a host of newer laws regulating abortion meaningless. Instead, she urged the judge to let licensed doctors perform abortions and for the old ban to apply only to unlicensed practitioners.

The judge sided with Brnovich, saying that since the injunction was only filed in 1973 because of the Roe decision, it should be lifted in its entirety.

“The Court finds that an attempt to reconcile fifty years of legislative activity is procedurally inappropriate in the context of the motion and the case before it,” Johnson wrote. “While there may be legal issues that the parties seek to resolve regarding Arizona’s abortion laws, those issues are not for this Court to decide here.”

In overturning Roe on June 24, the High Court said states could regulate abortion as they wished.

“We commend the court for upholding the will of the legislature and for bringing clarity and consistency to this important issue,” Brnovich said in a statement. “I have and will continue to protect the most vulnerable Arizonans.”

A doctor who runs a clinic that offers abortions said she was appalled but not surprised by the decision.

“It sort of aligns with what I’ve been saying for a while now – it’s the intent of the people running this state that abortion be illegal here,” Dr. DeShawn Taylor said. “Of course, we want to keep hope in the back of our minds, but in front of my mind, I prepared for the total ban all the time.”

Abortion providers have been on a roller coaster since Roe was overthrown, first closing operations, reopening them, and now having to close them again.

Johnson, the judge, said Planned Parenthood was free to file a new challenge. But with Arizona’s strict abortion laws and seven Republican-appointed Supreme Court justices, the chances of success seem slim.

What is allowed in each state has changed as legislatures and courts have acted. Prior to Friday’s decision, bans on abortion at any time during pregnancy were in place in 12 Republican-led states.

In another state, Wisconsin, clinics have stopped offering abortions amid litigation over whether an 1849 ban is in effect. Georgia bans abortions once fetal heart activity is detected, and Florida and Utah have bans that go into effect after 15 and 18 weeks of gestation, respectively.

The decision came a day before a new Arizona law took effect banning abortion after 15 weeks of pregnancy. The law passed by the Republican-controlled Legislature and signed by GOP Gov. Doug Ducey in March was signed into law in hopes that the U.S. Supreme Court would reduce limits on abortion regulations. This mirrored a Mississippi law the High Court was considering at the time that reduced the previous threshold by about nine weeks.

Ducey argued that the new law he signed takes precedence over pre-state law, but he did not send his attorneys to argue that before Johnson.

The old law was first enacted as part of the body of laws known as the “Howell Code” passed by Arizona’s 1st Territorial Legislature in 1864.

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