By Terri Jo Neff |
In one of the biggest legal rulings in decades, a Pima County judge ruled Friday afternoon that Arizona’s abortion ban is still in effect and can be enforced immediately.
Arizonans had been eagerly awaiting Judge Kellie Johnson’s decision with an eye on Sept. 24, the date a 15-week abortion ban passed earlier this year by the Arizona Legislature would have gone in effect if the law first implemented in 1864 was overturned.
The law outlaws performing or abetting the performance of an abortion except to save the life of the mother, and calls for a prison term of two to five years for anyone who violates the statute.
The language of the newer legislation signed by Gov. Doug Ducey in March is not much different than the 1864 law, other than the 15-week wait. However, the new law specifically stated it was not intended to repeal the 1864 law which was updated for technical language changes in 1901, more than a decade before statehood.
An appeal is expected, if only to reconcile the fact the new 15-week legislation takes effect Saturday and thus appears to directly conflict with Johnson’s ruling allowing enforcement of the territorial days law.
But without a court order putting Johnson’s ruling on hold, it appears Arizona Attorney General Mark Brnovich is ready to enforce the old law, which can be found in Arizona’s criminal code under Title 13, Chapter 36 Family Offenses:
“A person who provides, supplies or administers to a pregnant woman, or procures such woman to take any medicine, drugs or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless it is necessary to save her life, shall be punished by imprisonment in the state prison for not less than two years nor more than five years.”
In a statement released Friday, Brnovich applauded the “clarity and uniformity” of Johnson’s ruling. “I have and will continue to protect the most vulnerable Arizonans,” he stated.
The most recent records from the Arizona Department of Health Services showed that more than 12,500 women obtained an abortion in Arizona in 2020 prior to 15 weeks of pregnancy. About 640 obtained an abortion after the 15 week threshold.
Those records do not specify how many of the procedures were deemed by the women’s physician to be medically necessary.
Arizona’s abortion ban except to save a mother’s life became unenforceable due to a court-ordered injunction in 1973 when the U.S. Supreme Court decided Roe v. Wade. However, when Roe v. Wade was overturned in June, the question became whether the injunction against the nearly 160-year-old law was still valid, or was the 1901 language in fact valid law, or would the new 15-week ban signed by Ducey become law on Sept. 24, the legislation’s effective date.
The Center for Arizona Policy advocated for validating the old law.
“Judge Kellie Johnson’s ruling today upholding the law that was in effect in 1973 when Roe v. Wade was wrongly decided will protect unborn babies and their mothers,” said its president Cathi Herrod. “And nearly 50 pregnancy resource centers throughout the state stand ready to ensure no woman stands alone.”
The state’s 15 elected county attorneys also have authority under the law to pursue criminal prosecutions in the name of the State of Arizona.
Maricopa County Attorney Rachel Mitchell has previously stated she “does not want to revictimize” victims of rape or incest, which suggests she would not charge a doctor or other medical staff involved in an abortion in such cases. But she has declined to directly say if that will be an official agency policy.
Meanwhile, Pima County Attorney Laura Conover had pushed for the judge to reject the 1864 law. She announced Friday that her office is “reviewing legal options,” although she has gone on record for intending to not enforce the law in Pima County.
That would not prevent the attorney general’s office from pursuing a prosecution for an offense committed in Pima County.