By Howard Fischer
Capitol Media Services
PHOENIX -- Arizona Attorney General Mark Brnovich is asking Gov. Doug Ducey to call a special legislative session to let lawmakers provide "additional clarity'' about which of two abortion laws on the books they want enforced.
In a letter Wednesday to Anni Foster, the governor's legal counsel, Assistant Attorney General Beau Roysden said his office has been arguing in court that a territorial-era statute outlawing virtually all abortions is the law in Arizona except those to save the life of the mother. And he pointed out that SB 1164 signed earlier this year by Ducey banning abortions after 15 weeks specifically says it does not repeal the older law.
"However, the governor's office has not taken a clear legal position on the current state of the law in Arizona,'' Roysden wrote. And then there's the fact that Ducey told Capitol Media Services earlier this year he believes SB 1164 supersedes the earlier ban despite a specific provision in the bill to the contrary.
"I think we all want consistency and certainty in the law,'' Brnovich said in an interview with Capitol Media Services, saying the letter represents the position of his office. "And ultimately, it is up to the governor and the legislature to make any changes they believe are necessary.''
Even if Ducey does not call lawmakers back to the Capitol, Roysden asked Forster for Ducey to submit a legal brief in the current lawsuit playing out in Pima County about the issue that "clearly outlines'' the governor's legal position -- and whether he no longer stands by the "express legal intent'' of SB 1164 which says it does not overrule the older ban,
Ducey press aide C.J. Karamargin said the letter is being reviewed.
The letter comes as Brnovich, in new legal filings, told Pima County Superior Court Judge Kellie Johnson she should not grant the request by Planned Parenthood Arizona to delay implementing her order from last week allowing the state to enforce the old law, even with the subsequent approval of SB 1164 which is also on the books. And one reason, he said,is that nothing in either statute actually mandates any county attorney to actually do anything.
"It does not require them to prosecute anyone,'' he told the judge, even if she upholds her ruling that state law makes it a felony to perform an abortion, with a mandatory penalty of from two to five years in prison. "The county attorneys are free to exercise full and independent prosecutorial discretion in deciding how to enforce Arizona's various abortion regulations.''
Brnovich said this is underlined by a statement that Pima County Attorney Laura Conover made even before the Supreme Court ruling in June that her office will "do everything on our power to ensure that no person seeking or assisting in an abortion will spend the night in jail.'' He described that as a definitive statement that she will not prosecute abortion-related crimes.
But Conover, in an interview with Capitol Media Services, said that misrepresents her position. What it reflects, she said, is handling of a criminal complaint against a medical provider, not whether charges will be pursued,
"Where we do have some more operational power ... is how we would handle, God-forbid, someone literally being brought in in handcuffs into jail,'' Conover said.
She said that is unlikely to happen in Tucson where the city council voted in June, even before the Supreme Court ruling, that "no physical arrest will be made by an officer for an alleged violation'' of state abortion laws. But she said if someone is taken into custody, prosecutors will take care of that at an individual's initial appearance in court.
"After the initial appearance, we will carefully examine any case brought, in honor of my obligations,'' Conover said. "But no qualified provider acting in good faith will set in jail while we undertake a careful examination.''
Nothing in the ongoing legal dispute puts women in legal jeopardy. The legislature voted last year to repeal the laws that had made getting an abortion a crime.
Prosecutorial discretion aside, Brnovich told the judge she reached the right -- and only legal -- decision after the U.S Supreme Court in June overturned its 1973 decision in Roe v. Wade declaring that women have a constitutional right to terminate a pregnancy.
With Roe gone, she said, a 1973 state court injunction barring enforcement of the Arizona ban, issued based on that ruling, could not stand, as that territorial-era law was never repealed and has remained on the books all this time.
She also rejected arguments SB 1164, enacted before the high court voided Roe, superseded the still-on-the-books ban.
Brnovich also said there's no reason for Johnson to delay implementation while Planned Parenthood files an appeal. He pointed that organization, which opposed the old law, always has been free to file a separate challenge to it.
And Brnovich said there's another reason she should spurn the request by both Planned Parenthood and Conover to delay implementing her ruling.
"Abortion is permanent and results in the termination of an unborn life,'' he said. All Johnson's ruling does, Brnovich said, is keep the abortion ban in place while Planned Parenthood either seeks an appeal or files a new challenge to the law and asks for an injunction against its enforcement.
"Neither Planned Parenthood Arizona nor the county attorney give (ITALICS) any (ROMAN) weight to the interests of the unborn,'' Brnovich said.
The judge is unlikey to rule before Friday.
In her ruling last week,
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Arizona AG asks governor to call special legislative session on abortion laws
