Future of abortion in Arizona unresolved as issue goes to state judges
By Howard Fischer
Capitol Media Services
PHOENIX -- The question of whether some or all abortions are currently legal in Arizona -- and for how long -- remains unresolved as the issue goes to judges here.
On Wednesday, Attorney General Mark Brnovich said he will ask a state court to dissolve a 49-year-old injunction it issued in 1973 blocking Arizona from enforcing its existing laws making it a crime to perform an abortion. He said that was effectively overruled by last Friday's ruling by the U.S. Supreme Court overturning the historic Roe v. Wade decision.
But in saying he wants to "vacate the injunction'' of ARS 13-3603 -- the state's pre-1973 law outlawing abortion except to save the life of the mother -- Brnovich appears to be acknowledging that the court-ordered bar against the state enforcing the law remains in place unless and until the court acts.
Brnovich, who is a Republican candidate for U.S. Senate, did not return repeated messages seeking clarification of how exactly he plans to clear the way for enforcement of the abortion ban.
So far, though, Planned Parenthood Arizona has chosen not to resume abortions which it halted the morning of the Supreme Court decision.
"We are not going to put our patients, staff and communities at risk,'' said Brittany Fonteno, the organization's president told Capitol Media Services. Instead, she said, Planned Parenthood wants "actual clarity from a court of law.''
Fonteno said, though, her organization plans to be involved when Brnovich finally does move to dissolve the injunction.
"And we are hopeful that we will soon be able to block this law in court,'' she said.
Separately, the Supreme Court on Thursday vacated a stay that had been ordered against enforcing a separate 2021 law.
It makes it a crime for medical providers to perform an abortion if they know that the reason the woman is seeking the procedure solely due to a genetic abnormality. That law carries a penalty of up to a year in prison for doctors and others; there is no punishment on the woman.
U.S. District Court Judge Douglas Rayes said the law imposes an undue burden on women. And he said that outweighs any interest the state claims in promoting the law.
In a Twitter post, Brnovich declared the ban "is now in effect.''
In the order, though, the justices directed the case to go back to Rayes "for further consideration'' of his injunction based on Friday's ruling overturning Roe. Rayes has not set a date for such a hearing.
But Cathi Herrod, president of the anti-abortion Center for Arizona Policy that helped craft the 2021 law, said she agrees with Brnovich that, action by the trial judge or not, the state now has an enforceable law against abortions based on genetic defects
"When you have the U.S. Supreme Court vacate an order that rules something unconstitutional, it means that order's no longer in effect,'' she said.
Brnovich also has sided with abortion foes -- and against Gov. Doug Ducey -- on what will be the law on abortion in Arizona on Sept. 24.
That is the 91st day after the end of the session, when SB 1164 takes effect
It outlaws abortions after 15 weeks of gestation. And it was crafted to mirror the Mississippi statute that was before the Supreme Court just in cases the justices decided to uphold that law but leave Roe undisturbed.
With Roe overturned, however, proponents of that new law, including Herrod, contend that new statute is effectively irrelevant as the more restrictive -- and prior existing -- pre-Roe law takes precedence.
But Gov. Doug Ducey has argued that the 15-week ban, which he signed, becomes the enforceable -- and only -- law on when women in Arizona can get an abortion.
His position is that the most recent law supersedes the older one, regardless of the fact that the new law has specific language saying it does not affect the pre-1973 law that remained on the books following the Roe ruling.
Brnovich said that language controls -- and the governor is wrong.
"Our office has concluded the Arizona Legislature has made its intentions clear regarding abortion laws,'' he said in a Twitter post. "ARS 13-3603 is back in effect and will not be repealed in 90 days by SB 1164.''
Ducey, speaking Thursday on KVOI in Tucson, said he acknowledges that Brnovich, as the attorney general, is the chief legal adviser to the state. But that, he said, doesn't make it the last word.
"It seems that there is some challenge to what's happening here,'' the governor said. "And, likely, it'll have to be settled in the courts.''
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