Will Arizona have a near total ban on abortions, or block them after 15 weeks? Judge weighs arguments
TUCSON — A Pima County judge is weighing whether an anti-abortion law first enacted in 1864 should override all other laws regarding abortion and create a near ban on the procedure in Arizona.
Superior Court Judge Kellie Johnson did not make a ruling in the much anticipated hearing Friday in Tucson, but said she would do so within 60 days and no sooner than Sept. 20.
An injunction from 1973, when Roe v. Wade was decided by the Supreme Court, had blocked the territorial era anti-abortion law. Following the court's ruling overturning Roe this summer, Arizona Attorney General Mark Brnovich sought to have the injunction lifted so it could take effect.
Planned Parenthood of Arizona and the Pima County Attorney's Office argued that the court should "harmonize" all of the laws passed in Arizona, including a ban on abortions after 15 weeks that Gov. Doug Ducey signed into law earlier this year.
Attorneys suggested that the territorial-era ban on all abortions except to save the life of the mother should now only apply to unlicensed abortion providers.
With the overturning of Roe via a ruling in Dobbs v. Jackson Women's Health Organization, states can now set their own abortion laws. While many states had "trigger" laws, which were designed to take effect automatically upon Roe's reversal, uncertainty has reigned in Arizona over which laws are now in effect.
During the hearing, attorneys for Brnovich noted that before the Supreme Court decided Roe v. Wade, the Arizona Court of Appeals rejected a challenge to the near total ban, and the subsequent injunction occurred because of the court's decision.
The laws that were passed by the Arizona Legislature after Roe v. Wade had to account for what was then a constitutional right to abortion.
"Those laws were intended to regulate and limit abortion within the power the Legislature had; they were never intended to statutorily create a right to abortion. Those laws can remain on the books, but (the older law) should also now be able to take effect," said attorney Beau Roysden.
Brnovich's attorneys also noted that the 15-week ban signed by Ducey has language that says the law does not repeal the 1864 law or any other law restricting abortion.
Planned Parenthood's attorneys argued that the court is required to look at changes in law and circumstances since the injunction to the 158-year-old law was put in place in 1973.
"Over the last 50 years, Arizona's Legislature has enacted dozens of laws regulating abortion," said Planned Parenthood attorney Sarah Mac Dougall.
Planned Parenthood's attorneys argued that "harmonizing" the laws would allow "licensed physicians to continue to provide abortions consistent with the already existing regulatory scheme while applying (the 1864 law) to everyone other than licensed physicians."
The Pima County Attorney's Office sided with Planned Parenthood.
During the hearing, attorneys representing County Attorney Laura Conover reiterated the need to balance all of the various abortion laws, noting that the "existing laws are not compatible" with the 1864 ban and that the safety of pregnant women and doctors called to help in emergency situations are at stake.
"The 150-year-old law is also unconstitutional. Its unabated enforcement would cause irreparable harm," said attorney Samuel Brown.
Whatever the outcome, the case will almost assuredly get appealed.
Coverage of southern Arizona on azcentral.com and in The Arizona Republic is funded by the nonprofit Report for America in association with The Republic.
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This article originally appeared on Arizona Republic: Arizona abortion laws argued at Pima County Superior Court hearing
