PHOENIX – Arizona's Republican attorney general on Wednesday asked a court to lift an injunction blocking the enforcement of a law that bans all abortions except when the life of the mother is at risk.
The filing from Attorney General Mark Brnovich asks a court in Tucson to lift an order in place since shortly after the U.S. Supreme Court ruled in 1973's Roe v. Wade case that abortions are a constitutional right.
The newly conservative high court overturned that decision last month, leaving it again to the states to decide how to regulate abortions. Arizona's near-total ban on abortions has been on the books since at least 1901, and Brnovich said with Roe overturned it should now be enforceable.
“We believe this is the best and most accurate state of the law,” Brnovich said in a statement. “We know this is an important issue to so many Arizonans, and our hope is that the court will provide clarity and uniformity for our state.”
Brnovich, who is running for U.S. Senate, announced late last month that the old abortion ban was enforceable and that he would seek to have the injunction lifted.
Providers across the state stopped abortions after the Supreme Court's June 24 opinion, saying it was too risky to move ahead with the old ban still on the books and with a 2021 law that grants all rights to pre-born children also in play.
A federal judge on Monday blocked that law after abortion rights groups successfully argued that it was unconstitutionally vague. The judge agreed that it was unclear what criminal laws abortion providers may be breaking if they perform otherwise-legal abortions.
Abortion rights groups slammed Brnovich for moving to again allow enforcement of the pre-statehood ban
“It is outrageous that Arizona’s Attorney General is trying to revive this zombie law that has long been blocked," Gail Deady, an attorney at the Center for Reproductive Rights, said in a statement. “Arizonans’ personal health decisions, lives, and futures should not be dictated by a century-old, draconian law.”
Deady said that the high court's decision to overturn Roe has caused “absolute chaos” in Arizona and other states with Republican Legislatures that have previously unenforceable abortion restrictions on the books. Numerous court battles are underway to try to block “trigger laws" designed to ban abortion if Roe fell or opposing so-called “zombie laws” like Arizona's that predate Roe.
Arizona also has a 15-week ban that Republican Gov. Doug Ducey signed into law in March, and he has insisted that it takes precedence over the total ban Brnovich wants to enforce. But the 15-week ban law specifically said it did not overturn the 1901 law.
In the attorney general's court filing, assistant Attorney General Beau Roysden III laid out the history of the injunction that blocked the old abortion law.
That case started in 1971, two years before Roe was handed down, when the Tucson affiliate of Planned Parenthood, several doctors and a woman who wanted an abortion sued to overturn the law. A trial judge in Pima County Superior Court ruled the next year that a fetus does not have constitutionally protected rights and that the law banning abortion also violated the doctors' rights to practice medicine as they saw fit.
The Arizona Court of Appeals overturned that ruling, rejecting wholesale the lower court's reasoning that the abortion ban was unconstitutional and saying it could be enforced.
“Appellees’ complaints against the abortion statutes are peculiarly within the field occupied by the Legislature and any problem concerning abortion should be solved by that body,” the appeals court ruling said. “We can only reiterate that we are not a super-legislature.”
Less than three weeks later, the U.S. Supreme Court ruled in Roe, and the appeals court reversed its earlier judgment. The law was then permanently blocked.
Roysden noted that the “Legislature, however, did not acquiesce in the declaration that these laws were unconstitutional but rather took affirmative steps to ensure their continuing validity in the event that Roe was overruled."
The Legislature reenacted the pre-statehood ban in 1977, and this year said it was still on the books when they passed the ban on abortions after 15 weeks. The intent was to ensure it would be enforceable if Roe v. Wade were overturned, according to Wednesday's court filing.
The president and CEO of Planned Parenthood Arizona, Brittany Fonteno, said Brnovich's action shows he is “out of touch” with the majority of Arizonans who support abortion rights. She said the group plans to fight his request in court. Fonteno noted that the Legislature over the past 50 years has passed numerous laws allowing doctors to perform abortions.
“As a result, we believe that providers should still be able to provide this essential health care to the thousands of Arizonans who need it annually,” Fonteno said in a statement.
A date to hear Brnovich's request has not yet been set.