by Matthew Holloway | Sep 19, 2024 | News
By Matthew Holloway |
The narrowly passed repeal of Arizona’s complete ban on abortion became effective on Sep. 14th in a moment that is being widely celebrated by pro-abortion Democrats. Although Democrat Gov. Katie Hobbs signed the bill, H.B. 2677, into law in May, the bill only became effective on Saturday.
Under the current legal framework enacted in 2022, the state of Arizona has an effective ban on abortion after 15 weeks. While the Arizona Court of Appeals had previously ruled that the 2022 15-week measure and the total ban enacted by the territorial legislature in 1864 could be “harmonized,” the Arizona Supreme Court rejected this notion.
The Court wrote in its majority opinion, “Our conclusion that the legislature did not intend to create a privilege secured by law to obtain or perform an abortion obviates the need to harmonize §§ 13-3603 and 36-2322. Harmonization between these laws may be accomplished only by repealing § 13-3603 in contravention of the legislature’s express intent and engaging in untenable statutory interpretation such as excising physicians from the plain meaning of ‘person’ in § 13-3603, defined as ‘a human being’ in A.R.S § 13-105(30). And indeed, despite purporting to harmonize the statutes, the dissent’s treatment of § 13-3603 all but nullifies it. We decline to do so.”
The court ruled that following Dobbs v. Jackson Women’s Health Organization, the ruling that reversed Roe v. Wade, “Arizona has never independently created a statutory right to abortion. We will not ‘amend a statute judicially [nor] read implausible meaning into express statutory language’ given the absence of an abortion right in Arizona jurisprudence. Kyle v. Daniels, 198 Ariz. 304, 306 ¶ 7 (2000). Therefore, because the federal constitutional right to abortion that overrode § 13-3603 no longer exists, the statute is now enforceable, prospectively prohibiting abortion unless necessary to save a woman’s life.”
As reported by the Associated Press, Hobbs in no way intends to stop at repealing the 1864 ban and intends to install the a “right” to abortion in the state. She said in a statement cited by the AP, “I will continue doing everything in my power to protect reproductive freedoms, because I trust women to make the decisions that are best for them, and know politicians do not belong in the doctor’s office.”
In a May post to X, she outright stated, “Any bill attacking the right to safe and legal abortion access will be vetoed without hesitation.”
Indeed the initiative Proposition 139 created by “Arizona for Abortion Access” will appear on the ballot in November to repeal the 2022 15-week abortion ban and create an amendment for a “fundamental right” for abortion up to “fetal viability” allowing a baby’s life to be ended potentially up until birth.
As previously reported by AZ Free News, a legal battle unfolded between the legislature and the initiative organizers over the use of the phrase “unborn human being” in the description of the initiative. The State Supreme Court found in a 5-2 decision that the legislature’s choice to use the phrase “unborn human being” rather than “fetus” met legal standards.
The state legislative council explains in its analysis of the ballot proposal to make abortion a constitutional right:
“Current state law prohibits a physician from performing an abortion if the probable gestational age of the unborn human being is more than 15 weeks, except when a pregnant woman’s medical condition necessitates an immediate abortion to avert the pregnant woman’s death or for which a delay creates a serious risk of substantial and irreversible impairment of a major bodily function.”
Matthew Holloway is a senior reporter for AZ Free News. Follow him on X for his latest stories, or email tips to Matthew@azfreenews.com.
by Daniel Stefanski | Jul 17, 2023 | News
By Daniel Stefanski |
One of Arizona’s county attorneys is taking the lead in pushing back against one of the governor’s recent, controversial executive orders.
Last week, Maricopa County Attorney Rachel Mitchell went on Arizona Horizon on PBS to talk about her opposition to Democrat Governor Katie Hobbs’ executive order last month, which would “centralize all abortion-related prosecutions under the Attorney General to ensure differences in application of the law by county attorneys do not restrict access to legal abortions.”
Mitchell has consistently framed her counterargument in a way that allows the application of the law to overshadow the divisive issue of abortion. During the interview, Mitchell acknowledged that there were strong feelings on both sides of the abortion debate, saying, “It’s certainly an emotional topic, and I certainly understand why there are very emotional views on both sides.”
Though the Maricopa County Attorney recognizes the feelings for this issue, she is unwavering in her stance on the importance of following the law. She stated, “But the bottom line is that this is a government of laws, not of men – and there is a process for enacting laws in this state – and we have done that. It involves the legislature and the governor – or a referral to the people. And it cannot be governed by just one person’s decision. That is a government of men, and that is something that is just not appropriate – it’s not consistent with the American way of doing business.”
The Republican County Attorney also addressed the argument that the authority of the state’s attorney supersedes that of individual county attorneys, saying, “The attorney general is not the primary prosecutor in the State of Arizona. The primary prosecutors are the various 15 county attorneys, and so they are the ones with the greater jurisdiction – and so the governor cannot just take jurisdiction away from county attorneys who are elected in their own right…. If you look at the jurisdiction of the various county attorneys, it is a more general jurisdiction. The attorney general, for example, she can’t even go into a county grand jury without either my permission or the permission of a judge. Not a governor. So it’s not something where she can just assume someone else’s jurisdiction.”
Mitchell also poked significant holes in the idea that there was even a need in the first place for the governor and attorney general to step in to referee the issue of abortion, adding, “We know that the Dobbs’ decision came out a year ago now, and there has not been a single prosecution brought in any of the 15 counties. So I don’t know who would be considered to be overzealous. What I’m concerned about is somebody who is an extremist in another way, and that is if we set this as a precedent, where a governor thinks that they can strip another elected official’s powers – it may not be a bad thing today to some people, but in the future it may be…. They did not react to a specific case where extremism was occurring. They tried to take all of the power away from elected county attorneys in all circumstances, including cases that don’t involve that – and that is not appropriate. And it’s a very, very frightening precedent to start.”
When asked about her next move in response to the governor’s executive order, Mitchell didn’t completely close the door on being proactive, but instead indicated that her office might wait until conflict arose between the two jurisdictions: “I would have liked to have handled it in a professional way through discussion. I was hoping that the governor, through talking to others as well as the letter, would understand, that there is a better way to handle this, that this is an extremely dangerous precedent. She chose not to, and that’s within her purview. But that does not give her the authority. And so where it goes from here is that we’re going to continue to conduct business as we have for the past year. If a case is submitted – and there have been no cases submitted to me – we’re going to follow the same procedure that we have followed for every other case.”
The first-term county attorney ended her interview on Arizona PBS by announcing her commitment to following the law in this circumstance where she and the governor might take opposing sides. Mitchell reiterated that Hobbs’ “executive order doesn’t have the authority of overcoming the law,” and that “the law trumps executive orders and the constitution trumps the law.
Daniel Stefanski is a reporter for AZ Free News. You can send him news tips using this link.
by Corinne Murdock | May 28, 2023 | News
By Corinne Murdock |
The pro-life group Center for Arizona Policy (CAP) has asked the Arizona Supreme Court to reverse a lower court ruling nullifying the state’s total abortion ban.
The Arizona Court of Appeals ruled in December that, because the state legislature hadn’t attempted to eliminate elective abortions following and in spite of the Roe v. Wade ruling, the state legislature wouldn’t currently support the long-dormant ban.
CAP submitted their amicus brief in the case Planned Parenthood Arizona v. Mayes on Monday. In the brief, CAP pointed out that the decades-old injunction preventing the enforcement of the state’s abortion ban was contingent on the authority of Roe as law of the land. CAP also noted that most states with abortion bans following the Roe ruling repealed their bans, yet Arizona didn’t over the last 50 years.
“Recall that the legislature had two choices under Roe: allow the abortion free-for-all that Roe created or seek to limit abortion,” wrote CAP. “Eliminating elective abortion was not an option; Arizona’s law doing precisely that was already enjoined.”
CAP argued that the legislature had expressed legislative intent to protect unborn children at all stages of gestation on multiple occasions. The organization noted that Arizona had also attempted in 2012, unsuccessfully, to prohibit most abortions after 20 weeks gestation. CAP also noted that the state legislature enacted a statute in 2021 to direct all provisions of Arizona law to “be interpreted to acknowledge the equal rights of the unborn.”
CAP pointed to the language of the bill enacted last year allowing abortions to occur up to 15 weeks’ gestation, SB1164.
“[W]ith the potential overturning of Roe on the horizon, the legislature sought to avoid any doubt that it desired § 13-3603 [the abortion ban] to become fully enforceable again,” stated CAP. “Thus, S.B. 1164 went beyond simply saying that it was not repealing any ‘applicable state law regulating or restricting abortion.’ 2022 Ariz. Sess. Laws ch. 105, § 2 (2d Reg. Sess.). Its statement of non-repeal also referenced one law specifically—§ 13-3603.”
CAP estimated that about 13,000 unborn children were killed through abortion due to the lower court’s ruling, which upheld SB1164.
“Put simply, both the legislature and various abortion supporters believed that if Roe were overturned, § 13-3603 would prohibit physicians from performing elective abortions from conception. If the legislature did not desire that outcome, it would have acted to prevent it,” said CAP. “It did not. To the contrary, the legislature declared its intent to preserve § 13-3603 even after being told that it would prohibit all elective abortions if Roe were overturned. That intent must be given effect.”
In a press release, CAP argued further that the overturning of Roe should’ve restored the state’s dormant abortion ban. CAP said the lower court ruling “wrongly assumed” that post-Roe state lawmakers that passed limitations on abortion in accordance with the Supreme Court (SCOTUS) precedent didn’t intend to protect the pre-Roe ban.
“State lawmakers passed dozens of laws protecting life while Roe forbade them from going further; they kept the pre-Roe law on the books, even as they made other adjustments to the law; they passed a requirement that Arizona laws be interpreted to value all human life, at every stage of development; and they wrote into the latest abortion law a recommitment to protect life by specifically stating that they were not repealing the pre-Roe law by passing a 15-week limitation just months before Roe was overturned,” stated CAP.
Corinne Murdock is a reporter for AZ Free News. Follow her latest on Twitter, or email tips to corinne@azfreenews.com.
by Corinne Murdock | Mar 14, 2023 | News
By Corinne Murdock |
Two GOP lawmakers will defend the state’s ban on abortions due to fetal genetic abnormalities, since Attorney General Kris Mayes refuses.
House Speaker Ben Toma (R-LD27) and Senate President Warren Petersen (R-LD14) were granted permission to defend the law by U.S. District Court Judge Douglas Rayes last Thursday. Alliance Defending Freedom (ADF), a Scottsdale-based Christian legal advocacy group, is representing Toma and Petersen in the case, Isaacson v. Mayes.
Rayes determined that Toma and Petersen were qualified to intervene because they had significant protectable interest in the case. The pair requested to intervene in February, following Mayes informing the court that she no longer wished to represent the state in this case. Mayes told multiple news outlets just days into her administration that she wouldn’t defend or uphold the state’s existing abortion laws.
“Arizona has made a policy decision to vest in its legislative leaders an interest in defending the constitutionality of the legislature’s enactments,” stated Rayes. “If [Toma and Petersen] are not permitted to intervene, the challenged laws will go undefended, which ‘risk[s] turning a deaf ear to the voices the State has deemed crucial to understanding the full range of its interests.’”
Throughout her campaign and in her first few months as attorney general, Mayes characterized the contested abortion ban as “unconstitutional” and in violation of Arizona’s privacy clause, promised to not prosecute abortionists in violation of law, and vowed to use her authority to prevent county attorneys from enforcing abortion restrictions and bans.
“Intervention is even more appropriate here, where the Attorney General’s interests are directly contrary to those of the proposed intervenor,” stated ADF’s petition.
As AZ Free News reported last week, Mayes revealed that her office has even been encouraging pharmacies to give out abortion pills.
A.R.S. § 12-1841 allows legislative leaders to intervene in cases challenging the constitutionality of state statutes. Last year, the Supreme Court (SCOTUS) upheld the legality of state laws like Arizona’s.
Abortionists Paul Isaacson and Eric Ruess; the National Council of Jewish Women, Arizona section; Arizona National Organization for Women; and Arizona Medical Association sued the state over the abortion ban in August 2021. The ban, codified through SB1457, prevents a woman from terminating her pregnancy due to the presence of any fetal genetic abnormalities, like Down Syndrome.
SB1457 argued that the state had three compelling interests in outlawing selective abortions: protecting the disability community from discriminatory abortions; protecting citizens from coercive medical practices encouraging selective abortions based on genetic abnormalities; and protecting the integrity and ethics of the medical profession by preventing doctors from becoming witting participants in genetic-abnormality-selective abortion.
READ THE ABORTION BAN HERE
Last July, the court ruled that the law’s recognition of the personhood of unborn children was unconstitutionally vague and in conflict with other state laws.
The state legislature is working on passing additional abortion regulations and restrictions. SB1600 from State Sen. Janae Shamp (R-LD29) provides protections to infants born alive from a botched abortion. According to the Arizona Department of Health’s (AZDHS) latest data, at least nine babies were born alive following a botched abortion procedure in 2021. The Senate passed Shamp’s bill along party lines last month.
SB1146 from State Sen. Jake Hoffman (R-LD15) would require the State Board of Investment to identify companies that donate to or invest in organizations that promote, facilitate, or advocate for abortions for minors or for the inclusion of or referral of K-12 students to sexually explicit material. The Senate passed the bill earlier this month, also along party lines.
Corinne Murdock is a reporter for AZ Free News. Follow her latest on Twitter, or email tips to corinne@azfreenews.com.
by Corinne Murdock | Sep 28, 2022 | News
By Corinne Murdock |
On Monday, Planned Parenthood Arizona (PPAZ) filed a motion to stay a court ruling reinstating Arizona’s total abortion ban.
Last Thursday, Pima County Superior Court Judge Kellie Johnson lifted an injunction on the 1901 total abortion ban in Planned Parenthood Center of Tucson, et al. v. Gary Nelson, et al. The court case is a continuation of the 1970s case that enjoined the total abortion ban as unconstitutional based on the Supreme Court (SCOTUS) ruling in Roe v. Wade.
Johnson ruled that SCOTUS overturning Roe v. Wade earlier this year nullified the Pima County Superior Court’s injunction against Arizona’s total abortion ban. Johnson added that she wouldn’t be addressing the legality of Arizona’s abortion statutes.
“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,” stated Johnson. “The Court finds an attempt to reconcile fifty years of legislative activity procedurally improper in the context of the motion and record before it. While there may be legal questions the parties seek to resolve regarding Arizona statutes on abortions, those questions are not for this Court to decide here.”
The 1901 ban, which predated Arizona’s statehood, resembles the most recent abortion law enacted by Governor Doug Ducey in March. While the former institutes a total abortion ban, the latter limits abortions to 15 weeks. However, the latter law stipulates that it doesn’t supersede the 1901 ban.
READ HERE: PIMA COUNTY SUPERIOR COURT RULING
In a press release, PPAZ President and CEO Brittany Fonteno had a different view of the two laws’ relationship. Fonteno contended that Johnson’s ruling enabled conflicting laws to exist in the state, therefore forcing their facilities to continue suspension of abortions.
“This confusion has forced Planned Parenthood Arizona to pause abortion services and cancel appointments scheduled this week — meaning that members of the community once again have been and will continue to be denied medical care that they deserve and need while this decision is in effect,” said Fonteno. “This is unacceptable.”
The few abortion clinics that continued to provide certain services while awaiting the court ruling, such as Camelback Family Clinic, have suspended their services due to this latest ruling.
Arizona’s abortion fund providers — Abortion Fund of Arizona (AFAZ) and the Tucson Abortion Support Collective (TASC), as well as a national network that serves Native American women only in Arizona, Indigenous Women Rising (IWR) — continue to collect funds to provide abortions and all associated costs, such as transportation and time off work.
The fundraising page for the three abortion fund providers, launched through the Democratic fundraising platform ActBlue, has raised nearly $47,800 with a goal of $100,000 as of press time.
“Funding abortion care is a radical act of compassion and you, too, can be a part of this work!” reads the fundraiser page.
Arizona Attorney General Mark Brnovich, who argued for the court to lift the 1973 injunction on the state’s total abortion ban, commended Johnson for issuing proper legal recourse.
“We applaud the court for upholding the will of the legislature and providing clarity and uniformity on this important issue. I have and will continue to protect the most vulnerable Arizonans,” stated Brnovich.
In addition to Arizona, 14 other states have total abortion bans: Idaho, Texas, Oklahoma, Missouri, Arkansas, Louisiana, Mississippi, Alabama, Tennessee, Kentucky, and West Virginia. 9 more states are fighting to restore or have total abortion bans on the books in addition to current abortion restrictions: Utah, Wyoming, North Dakota, Nebraska, Iowa, Wisconsin, Michigan, Indiana, and North Carolina.
Corinne Murdock is a reporter for AZ Free News. Follow her latest on Twitter, or email tips to corinne@azfreenews.com.
