[ A 15-week abortion ban passed this year will take effect on
Saturday. But the attorney general has argued that the near-total ban
from the 19th century should take precedence.]
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ARIZONA JUDGE REINSTATES ABORTION BAN FROM 1864  
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Eliza Fawcett
September 23, 2022
N.Y.Times
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_ A 15-week abortion ban passed this year will take effect on
Saturday. But the attorney general has argued that the near-total ban
from the 19th century should take precedence. _

Attorney General Mark Brnovich of Arizona applauded the judge’s
decision., Alberto Mariani/The Republic, via USA Today Network

 

A judge on Friday ruled that a near-total abortion ban written before
Arizona became a state must be enforced, throwing abortion access into
question one day before the start of a 15-week ban
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that passed the Legislature this year.

The stricter ban, which can be traced to 1864, was blocked by a court
injunction in 1973 shortly after the Supreme Court, in Roe v. Wade,
determined that there was a constitutional right to abortion.

On Friday, Judge Kellie Johnson of Pima County Superior Court lifted
that injunction
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noting that Roe had been overruled in June and that Planned
Parenthood’s request for the court to “harmonize the laws” in
Arizona was flawed.

The 1864 law, first established by the state’s territorial
legislature
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mandates a two- to five-year prison sentence for anyone who helps a
woman obtain an abortion. In 1901, the law was updated and codified
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“No archaic law should dictate our reproductive freedom,” Brittany
Fonteno, the president and chief executive of Planned Parenthood
Arizona, said in a statement after the judge’s ruling.

In an interview, Ms. Fonteno said the organization had stopped
providing abortions in Tucson, at the sole Planned Parenthood location
in the state where women were still getting them. “I cannot
overstate how cruel this decision is,” she said. “It feels like
we’re back to square one.”

Even though abortion remained legal in Arizona after the Supreme
Court’s decision this year, it has been all but unavailable, as
doctors and abortion clinics have tried to sort out confusion about
which law would ultimately take effect. Even politicians disagreed on
the relationship between the laws, which each include exceptions in
the case of a medical emergency.

Gov. Doug Ducey has said that the 15-week ban he signed in March
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would supersede the century-old ban, but Attorney General Mark
Brnovich, a fellow Republican, has argued that the older ban should
take precedence. Mr. Brnovich filed the motion to vacate
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the injunction from 1973.

“I have and will continue to protect the most vulnerable
Arizonans,” Mr. Brnovich said in a statement after the ruling. Mr.
Ducey’s spokesman, C.J. Karamargin, said that the governor was proud
to have signed the 15-week ban and that “Arizona remains one of the
most pro-life states in the country.”

Planned Parenthood Arizona had argued that the state’s conflicting
laws should be reconciled so licensed physicians could continue
providing abortions under the 15-week regulation, with the much
earlier law only applying to others performing the procedure.

Judge Johnson, who was appointed by the governor, disagreed. “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,” she wrote. “The court finds an attempt to reconcile 50
years of legislative activity procedurally improper.”

Abortion rights supporters like Secretary of State Katie Hobbs, the
Democratic candidate for governor, were critical of the decision.
“Medical professionals will now be forced to think twice and call
their lawyer before providing patients with oftentimes necessary,
lifesaving care,” she said in a statement.

Women seeking abortions had already been traveling to New Mexico,
California and Nevada amid the legal turmoil that erupted in Arizona
after Roe was struck down, and providers said they anticipated those
waves would now swell.

Dr. Gabrielle Goodrick, the medical director of Camelback Family
Planning, an abortion clinic in Phoenix, said the clinic saw its last
patients who were more than 15 weeks pregnant on Friday, in
anticipation of the Legislature’s recent ban taking effect.

“I don’t know what we’ll do on Monday,” she said. “We’ll
help get people to another state, help them with transportation and
work releases for time off.”

Cathi Herrod, the president of the Center for Arizona Policy, which
opposes abortion, said that Friday’s ruling would “protect unborn
babies and their mothers.”

“Abortion ends one life and puts the woman at risk of physical and
emotional harm,” she said. “Arizona’s abortion law effectively
affirms that life is a human right and should not be sacrificed unless
the mother’s life is at risk.”

Reporting was contributed by Kate Zernike, Jack Healy and Allison
McCann.

 

CORRECTION: 
Sept. 24, 2022
In earlier version of this story incorrectly described Arizona as a
state in 1901. It became a state in 1912.

Eliza Fawcett is a reporter for the National desk and a member of the
2022-2023 New York Times fellowship class. @ElizaFawcett
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* abortion
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* Arizona
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