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Virtually all abortions in Arizona are now illegal, judge rules

Pima County Superior Court Judge Kellie Johnson
Mamta Popat, pool, Arizona Daily Star
Pima County Superior Court Judge Kellie Johnson

By Howard Fischer
Capitol Media Services
PHOENIX -- Virtually all abortions in Arizona are now illegal.
Pima County Superior Court Judge Kellie Johnson late Friday rejected arguments by Planned Parenthood of Arizona that a law which has been on the books since territorial days was replaced when lawmakers earlier this year approved a 15-week ban.
That law, a version of which dates to 1864, has only a single exception: to save the life of the mother. But it prohibits the procedure even in cases of rape or incest.
Attorney Andrew Gaona had argued that Johnson needed to ``harmonize'' the old law, which was never repealed after the U.S. Supreme Court ruled in 1973 that women have a constitutional right to abortion, with what has been enacted since. And that includes the 15-week ban.
So he asked Johnson to rule that the new law applies only to doctors, with the old outright ban applying to everyone else.
She refused, saying her job was only to determine whether the injunction against enforcement of the territorial-era law, issued by the state Court of Appeals in 1973 -- after the Roe v. Wade ruling -- is still valid.
The judge said it is not now that the justices overturned Roe. And what happened since, like approval of the 15-week ban, Johnson said, is legally irrelevant.
"The court finds modifying the injunction to harmonize laws not in existence when the complaint was filed is procedurally improper,'' the judge wrote. And she said a carve-out exempting doctors from the outright 1864 ban -- the argument for advanced by Planned Parenthood -- "is not consistent with the plain language (of the territorial law) which contains no such exception.''
There is also the fact that when lawmakers voted earlier this year to approve the 15-week ban -- before the Supreme Court in June overturned Roe. v Wade -- they spelled out they were not repealing the old law. Now she has given Attorney General Mark Brnovich permission to enforce it.
"We applaud the court for upholding the will of the legislature and providing clarity and uniformity on this important issue,'' Brnovich said in a prepared statement. "I have and will continue to protect the most vulnerable Arizonans.''
There was no immediate response from Planned Parenthood.
But Pima County Attorney Laura Conover, who sided with the organization, said her office now "will be looking at available legal remedies,'' though she did not spell out what those are.
Conover said a legal ban "does little to deter actual abortion rates.''
"Rather, it forces pregnant people to seek care from unskilled providers or perform the procedure themselves,'' she said in a statement. "Additionally, the near total ban provides no consideration for victims of rape or incest, making society more vulnerable to these violent crimes.''
But Cathi Herrod, president of the anti-abortion Center for Arizona Policy, said there are dozens of "pregnancy resource centers'' throughout Arizona that can provide help to women, from prenatal care and adoption support to car seats and strollers.
"Arizona can and will care for both mother and her unborn child,'' she said.
Friday's ruling is unlikely to be the last word.
C.J. Karamargin, press aide to Gov. Doug Ducey, pointed out that while Johnson said the 1864 law can be enforced, the judge never specifically voided SB 1164, the 15-week ban that the governor signed into law earlier this year. And Karamargin said that, as far as Ducey is concerned, that law takes effect as scheduled Saturday.
That sets the stage for someone to ask the state Supreme Court for guidance on which statute takes precedence.
SB 1164 was modeled after a Mississippi law which was being considered by the U.S. Supreme Court. Backers said they wanted a similar statute on the Arizona books that could be immediately enforced should the justices uphold that law.
As it turned out, though, the high court went further, overturning the entire 1973 ruling and freeing states to enact whatever laws they want. Based on that, Brnovich argued the territorial law, which never was repealed, is now enforceable.
In fact, he noted, SB 1164 contains specific language preserving the old law.
What landed the issue in Johnson's court was the fact that the state Court of Appeals, issuing a ruling in 1973 after Roe v. Wade was decided, permanently enjoined both Pima County and the attorney general from enforcing the territorial law.
Brnovich sought to dissolve that injunction in light of the latest Supreme Court ruling. And that forced Planned Parenthood, which didn't support SB 1164 when it was being debated, to offer up the legal theory that it superseded the old law.
That wasn't a unique view. Even Ducey, who supported SB 1164 and signed it into law, told Capitol Media Services earlier this year that was his opinion.
"This law was signed this year,'' he said. "I think that the law that you sign in 2022 superseded (what the law was in) 1973.''
Gaona proposed that Johnson could honor both the old and new laws by concluding the 15-week ban was meant to be a restriction on doctors, with the outright ban applying to everyone else.
Johnson wasn't buying that argument.
She said the 1973 injunction barring enforcement of the territorial-era law was based on the constitutional grounds laid out by the Supreme Court in Roe v. Wade. That is now gone.
"The court finds that because the legal basis for the judgment entered in 1973 has now been overruled, it must vacate the judgment in its entirety,'' Johnson wrote
And Johnson said she cannot now rule that SB 1164, approved only this year, can be used to keep that injunction in place, even partly, especially when the new law spells out it was not overriding the old one.
Johnson stressed she was not ruling on the constitutionality of the old law but dealing only with that 1973 injunction.
There have been arguments advanced that the statute runs afoul of the privacy provision of the Arizona Constitution. In fact, Kris Mayes, the Democrat candidate for attorney general, has advanced that theory and promised not to enforce the law if elected.
"While there may be legal questions the parties seek to resolve regarding Arizona statutes on abortion, those questions are not for this court to decide here,'' Johnson wrote.