Abortion opponents want Arizona Supreme Court to reject 'unjust delay' in implementing 1864 ban

The legal organization defending Arizona's 1864 abortion ban asked the state Supreme Court on Tuesday to reject an "unjust delay" on the ban requested in separate motions by state Attorney General Kris Mayes and Planned Parenthood Arizona.

It's unknown when the court will rule on the requests. But if the court turns them down, the law would be enforceable after June 27 until the Legislature's May 1 repeal of the law goes into effect later this year, according to Mayes' office.

The 160-year-old law has been under a stay during lawsuit proceedings but threatens to halt abortion services for a few crucial months before the repeal goes into effect. It mandates two to five years in prison for abortion providers.

The brief filed by Alliance Defending Freedom opposes the motions seeking an extended stay. The group is providing free legal services for Dr. Eric Hazelrigg, medical director of Choices Pregnancy Center, and Dennis McGrane, Yavapai County attorney.

"The legislature has chosen to protect unborn life until (the) repeal later this year," said the brief, written by Jake Warner, the group's senior counsel.

After the state Supreme Court upheld the territorial ban's enforcement, Democratic lawmakers with the help of five Republicans scraped up enough votes to pass a repeal bill. Making the repeal an emergency measure that could have taken effect immediately would have required a two-thirds majority vote.

With a simple majority vote, the repeal will take effect 90 days after the Legislature ends its current year's session. Sine die, as the last day is known, could take place in a few weeks or longer. Last year, sine die was on July 31.

Mayes and Planned Parenthood Arizona launched their last-ditch efforts for a delay of enforcement before Democratic Gov. Katie Hobbs signed the repeal bill into law.

Mayes asked the court to delay the final mandate of its April 9 ruling for 90 days so her office could consider whether they can take the case to the U.S. Supreme Court. The mandate, which is the court's official release of its ruling, has already been delayed an extra 15 days because of a previous motion by Mayes.

Although the U.S. Supreme Court overturned Roe v. Wade in 2022, removing the legal protection against Arizona's 1864 abortion ban, Mayes' office argues the state Supreme Court relied too heavily in its ruling on a state law that a federal court has already found constitutionally vague.

Planned Parenthood, in its own request, asked the state Supreme Court to delay its mandate until after the repeal takes effect, which would prevent any enforcement.

Warner asserted in his brief that a lack of enforcement would be contrary to the Legislature's wishes. He accused Mayes of making her arguments solely to delay enforcement, noting "she reassured constituents that her office 'is exploring every option available to prevent this outrageous law' from ever taking effect."

While stating that lawmakers "refused" to enact the repeal with an emergency clause, Warner acknowledged that, "in truth, the legislature had insufficient votes to prioritize abortion providers over unborn children for the next few months."

Citing Arizona health statistics, Warner wrote that more than 25 abortions occur each day in the state. Mayes and Planned Parenthood did not "weigh the threat to these lives" in asking for a delay in enforcement. Abortion providers and their patients had no problem with a previous halt on services, he wrote.

"Respondents show no evidence that another short window for life would do worse," Warner wrote. "And while women will receive lifesaving care regardless of whether the mandate drops, the same is not true for unborn children."

Planned Parenthood had no comment on the group's brief. Richie Taylor, spokesperson for Mayes, said the office would submit a response to Alliance Defending Freedom's brief on Thursday.

Mayes said in a news conference on Tuesday that the court could rule on her motion quickly because its final mandate was scheduled to be issued on May 13.

"We're still very hopeful that the Supreme Court agrees with us, that the only sane thing to do with this situation is to put in abeyance or to stay their decision upholding the 1864 ban," Mayes said, noting the action of the Legislature and Hobbs to repeal the ban should send a signal to the court.

Should the court deny her motion to stay its mandate, “everything will be on the table,” Mayes said, “from taking an immediate appeal to the United States Supreme Court to other potential options. This is not over, not by a long shot, and we're going to fight this 1864 ban all the way to the end.”

On to Hobbs: Senate votes to overturn Arizona abortion ban, sends repeal of 1864 law to governor

Republic reporter Stacey Barchenger contributed to this article.

Reach the reporter at rstern@arizonarepublic.com or 480-276-3237. Follow him on X @raystern.

This article originally appeared on Arizona Republic: Abortion opponents ask court to reject delays in 1864 ban enforcement