Arizona Attorney General Kris Mayes asks state Supreme Court to reconsider 1864 abortion ban

As lawmakers prepared to again try to repeal a 160-year-old abortion ban, Arizona Attorney General Kris Mayes’ office on Tuesday asked the state Supreme Court to reconsider its decision to uphold the ban.

The 32-page motion for reconsideration asks the court to revise or toss its April 9 ruling to uphold the ban, claiming the decision ignores normal legal traditions and previous laws while attempting to trump a federal court ruling in a different lawsuit.

The Arizona Supreme Court may not "position itself as a court of higher review regarding federal decisions," Solicitor General Joshua Bendor warned in the motion.

Mayes' spokesperson, Richie Taylor, said the court has no deadline to respond to the reconsideration request, but could "ask the other side for a response or to deny it."

The motion doesn't ask the court to stay its ruling while, or if, it considers the request.

"We're confident that the Arizona Supreme Court will affirm its recent decision," said Jake Warner, senior counsel for the conservative law group Alliance Defending Freedom.

The group, which is providing free legal services for an anti-abortion doctor who wants to see the ban go into effect, said the ruling allows Arizonans to respect life as "our most fundamental human right."

In the 4-2 ruling, the court said the pre-statehood law, which requires two to five years in prison for anyone providing an abortion, "is now enforceable." The only exception in the law is to save a mother's life.

When the law might be enforced is unknown. No county prosecutor has presented a possible case, and Mayes has said she won't enforce it or any other anti-abortion law. She's backed up by an executive action by fellow Democrat Gov. Katie Hobbs that gives authority over abortion-related prosecutions to the Attorney General's Office.

Lawyers for an anti-abortion doctor in the case say the law could be enforced starting April 24. But a deal reached in a separate, 2022 court action called for a 45-day delay in enforcement following the official mandate.

Mayes said earlier this week that means the law could not take effect until June 8.

Reproductive rights advocates and medical professionals warn that enforcing the pre-statehood law could threaten women's lives. Democrats in the state Legislature have tried for the last two weeks to repeal the law since the ruling, helped by a few Republicans from swing districts who have felt the ruling's political impact.

Meeting only each Wednesday for the time being, the Legislature is expected to hear another motion to waive rules and advance a repeal bill on April 24.

Last week, the state Senate created and advanced its own repeal bill, which itself was due to be heard for a second time on Wednesday. The state constitution requires bills to be heard on three separate days before they can be passed.

Republican lawmakers, under former Republican Gov. Doug Ducey, passed a law in 2022 banning abortions after 15 weeks of pregnancy except in medical emergencies, adding a provision to ensure the pre-statehood ban wasn't repealed.

First codified in 1864 by the territorial Legislature, the ban was challenged in court by Planned Parenthood in 1971, then held dormant since 1973 by the Roe v. Wade decision. The Arizona Supreme Court ruled the older law supersedes the 2022 law.

Bendor's motion chastizes the justices for making unjustified interpretations from the 2022 law's "silence" on how it would integrate the 1864 law if Roe v. Wade was overturned. The court should instead have harmonized the two laws, "just as it has done countless times before."

Bendor argues against the justices' reliance on a 2021 anti-abortion law now held up in federal court. The 2021 law, also signed by Ducey, bans abortions sought because of "genetic abnormalities" and attempts to grant personhood to fetuses. The latter provision has been under a court injunction since July 2022.

Despite the injunction, the majority of justices said in their April 9 ruling, the fact the Legislature passed the law at all "provides additional interpretive guidance, and belies the notion that the legislature intended to create independent statutory authority for elective abortion."

The state Supreme Court essentially denied Planned Parenthood its right to federal court justice when it "erroneously" used the 2021 law "in a manner the federal district court found unconstitutional and enjoined," Bendor's motion states.

U.S. District Judge Douglas Rayes ordered parties in the federal case over the 2021 law to file briefs on the effect of the state Supreme Court ruling on the case.

Mayes' office argued the ruling has no effect on the federal case, which addresses different areas of the law than in the lawsuit on the 1864 ban.

Alliance Defending Freedom, in its brief to Rayes, said the judge should dismiss the case following the state ruling.

The group said if the pre-statehood ban was in effect, most of the provisions of the 2021 law would be moot. For instance, the group's brief stated, the law's prohibition on accepting money for an abortion “because of a genetic abnormality” would likely never apply because the only legal abortions would be to save a mother's life.

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

This article originally appeared on Arizona Republic: Arizona abortion ban: AG asks state Supreme Court to reconsider