Arizona has two pathways for addressing abortion: an outright ban as old as the state itself, or the 15-week restriction codified in March.
On Friday, the Supreme Court (SCOTUS) ruled that Roe v. Wade invented a nonexistent constitutional right to abortion, wrongly forcing the states to surrender their authority on the subject. Arizona’s elected officials must decide whether to honor the state’s original outright ban on abortion or, instead, enforce the 15-week ban passed earlier this year. The latter will likely go into effect in the second-to-last week of September; the SCOTUS ruling will be effective near the end of next month.
The Senate’s Republican caucus declared in a press release that the original outright ban is in effect. However, the attorney general’s office hasn’t issued a formal statement of which law it will enforce. It explained in a statement that it’s conducting a legal review.
“This law, that is already on the books, bans most abortions, unless the procedure is necessary to save the life of a mother,” wrote the Senate majority. “Last year, the legislature amended this law, so that the mother who chooses to have an abortion will not face any punishment.”
Long before the legislature revised the ban, the Arizona Court of Appeals enjoined the law as unconstitutional in its 1973 ruling in Nelson v. Planned Parenthood Center of Tucson. That decision was directed by the SCOTUS precedent in Roe.
Insecurity over current law prompted Arizona’s abortion providers to suspend abortions until further notice. Chris Love, the chairwoman of Planned Parenthood Arizona’s advocacy arm who bragged about her husband assaulting a black Trump supporter at a pro-abortion rally last month, explained that they didn’t want providers to lose their licenses or police engaging with their patients.
Cathi Herrod, the president of the Center for Arizona Policy, spoke with “Conservative Circus” host James T. Harris about the viability of restoring Arizona’s original abortion ban.
Herrod opined that Arizona’s original abortion ban would stand because it preceded Roe v. Wade and that was never repealed after. Arizona outlawed abortion from 1901, prior to achieving statehood, up until it was required by the Supreme Court to allow abortions in 1973. The original ban is A.R.S. 13:3603, which only punishes abortion providers and not the pregnant women.
“I believe that is still good law and that it should be enforceable,” said Herrod.
Herrod clarified that the 1973 Arizona Court of Appeals decision rested on the SCOTUS decision at the time, indicating that the law was no longer enjoined as a result of Friday’s ruling.
Herrod also noted that even the most recent limitation on abortion — SB1164 banning abortions after 15 weeks, signed into law in March — stipulated that it didn’t repeal the state’s original abortion ban.
“This act does not: […] Repeal, by implication or otherwise, section 13-3602, Arizona Revised Statutes, or any other applicable state law regulating or restricting abortion,” reads the latest law.
In a Facebook post, Herrod added that the state’s original ban had greater enforceability than the 15-week restriction, unless a court enjoins that ban. In that case, Herrod stated that the 15-week restriction would be enforceable.
In response to claims that the legal system would punish expectant mothers for obtaining abortions, Herrod clarified that no state laws extended punishment to mothers. She noted that Governor Doug Ducey codified a repeal of a pre-Roe law punishing women who received abortions with jail.
Herrod predicted that there would be lawsuits on Arizona’s abortion bans. Pro-abortionists undertook legal action on Saturday, a day after the SCOTUS ruling. ACLU of Arizona, the Center for Reproductive Rights, the Arizona Medical Association, and the National Council of Jewish Women Arizona filed an emergency motion in the Arizona District Court.
According to the latest data from the Arizona Department of Health Services (AZDHS), there were nearly 13,300 abortions completed in 2020 — over 36 a day across the dozen facilities that provide abortions in the state. Over 85 percent of those who obtained abortions were unmarried. The greatest number of abortions occurred in women aged 20-24 years old: about 4,000. Over 1,200 of the abortions came from teenagers, from under 15 years old to 19 years old. Over 7,600 of the abortions came from women in the 20’s, and over 3,800 came from women in their 30’s.
Arizona Senate President Karen Fann (R-Prescott) accused Maricopa County’s top election officials of gaslighting Attorney General Mark Brnovich as part of an ongoing massive cover-up of their alleged mistakes in the 2020 election. She asserted that Brnovich was doing his job, even at the risk of facing media attacks that could undermine his senate campaign.
Fann noted that Recorder Stephen Richer had no reason to participate in the alleged cover-up because he didn’t assume his role until January 2021.
“It still goes beyond me that they are still denying the mistakes that happened,” said Fann. “[Richer] joined up with the board of supervisors to do this massive coverup. Mind you, they kept saying everything was fine and perfect. No it wasn’t.”
The senate president appeared on “The Conservative Circus” with host James T. Harris. She brought up past admissions by the county as evidence of a massive cover-up.
Fann gave one example of the county’s admission that one 2020 election poll worker double-counted 50 ballots. She said that although that amount didn’t seem like a lot in the context of a presidential election, it would’ve mattered in the 2016 primary election between Congressman Andy Biggs (R-AZ-05) and opponent Christine Jones. Their race necessitated a recount; Biggs ultimately won by 27 votes.
As an example of the county contradicting its claims on the nonexistence of widespread fraud, Fann cited Richer’s emails. She read aloud from one, in which Richer wrote of the existence of “plenty of instances of actual, prosecuted and convicted election law violations [from] both administrators and normal citizens,” some of which he asserted were recent.
Additionally, Fann revealed that Richer’s emails identified major issues with chain of custody and signature verification.
“But now? Nope. He’s part of the cover-up by saying, ‘Oh no, everything is fine,’” said Fann. “The Arizona Senate was the only body in the entire nation to step up and actually say, ‘Let’s get to the bottom of these rumors. Let’s get to the bottom of these allegations.’ The Senate has been attacked from day one — before the auditors were selected, before anything happened.”
Fann’s remarks on Thursday were in response to the actions of the Maricopa County election officials this week.
On Wednesday, the Maricopa County Board of Supervisors and Richer presented a unified front against Brnovich’s interim report on the 2020 election. The officials accused Brnovich of lying and using the election controversy to score “cheap political points.”
On Thursday, State Senate President Karen Fann (R-Prescott) revealed that Maricopa County election officials ordered postal workers to destroy live ballots that were undeliverable. Fann noted that those ballots were vulnerable because they weren’t destroyed immediately. Fann also insisted that there were over 700,000 ballots that didn’t have proper chain of custody documentation. Maricopa County Recorder Stephen Richer dismissed Fann’s claim in a statement to AZ Free News, explaining that the ballots in question weren’t live ballots and that, upon being discovered as undeliverable, the barcode on each ballot in question is canceled and therefore unusable.
Maricopa County Election officials claimed they could account for every ballot delivered to the election departments. Fann refuted that claim. Instead, she claimed that there were ballots returned to the post office because they were undeliverable, and the election officials ordered them to be destroyed because they weren’t “needed.”
“Those ballots never went back to the election department, they never went back to run back,” said Fann. “Those were still live ballots that anybody could’ve tampered with until such time that the post office destroyed them. Why were we allowing that to happen?”
Fann said that there were investigations underway to determine the legality of allowing the postal office to destroy live ballots on their own time.
These remarks were conferred in an interview with “Conservative Circus,” where Fann asserted that Attorney General Mark Brnovich’s interim report of the 2020 election was only “scratching the surface,” and that more would come to light. Fann confirmed that Brnovich’s report discovered exactly what she expected they’d find. She ascribed Maricopa County Board of Supervisors and mainstream media’s negative, “apoplectic” reactions to the report, as described by host James T. Harris, as fear over full exposure of the mass cover-up of problems in the 2020 election.
“It’s still a cover-up. I don’t say that lightly,” said Fann. “We’re finally being validated that, yes, in fact there are problems with our elections system here in Maricopa County.”
AZ Free News reached out to Richer about Fann’s claims. Richer reiterated the county’s promise that they could account for every one of those undelivered ballots, and that none of the canceled ballots were voted on. He asserted that Fann was misconstruing a normal partnership between elections offices and post offices.
“Karen Fann is again distorting the truth to fit her narrative. Since 2015, Maricopa County has used an ‘Electronic Service Requested’ endorsement on election mail. We have a contract in place for the United States Postal Service to provide the Elections Department with an electronic file on each mail piece so the office can expedite address checks as required by law. Ballots returned through the Electronic Service Requested process are not ‘live ballots’ as Karen Fann stated. Each early ballot has a unique barcode that cannot be replicated. The barcode on each returned packet is canceled and the ballot can no longer be used to cast a vote,” responded Richer. “The fact is, the United States Postal Service is a government agency tasked with the safe handling of billions of pieces of mail, including the secure destruction of undeliverable election mail. This process is used by Elections Departments nationwide. Maricopa County has a record of every mail piece returned through this process as well as every ballot returned by voters. Our system shows that no attempt has ever been made to cast one of these canceled ballots.”
Brnovich’s report explained that his Election Integrity Unit (EIU) discovered instances of election fraud, but that their review is ongoing and therefore limited to further disclosures on that subject. The attorney general summarized that there were system-wide issues with early ballot handling and verification, calling the signature verification system “insufficient” against preventing fraud. One example noted that well over 206,600 early ballot affidavit signatures were verified in an average of 4.6 seconds per signature. Brnovich also revealed that about 20 percent of early ballots were improperly transported from drop locations to election headquarters.
“We have reached the conclusion that the 2020 election in Maricopa County revealed serious vulnerabilities that must be addressed and raises questions about the 2020 election in Arizona,” said Brnovich.
Fann lamented that several Republican colleagues joined Democrats to kill several election integrity bills this session. She said that the problems highlighted by Brnovich’s report were only several of the problems that would be found pending further investigations. Fann didn’t name the “one or two Republicans” that prevented key election reform legislation from passing, but our reporting indicates that she was likely referring to State Senators Paul Boyer (R-Glendale) or Michelle Ugenti-Rita (R-Scottsdale).
“This is why it is so important we do not ease up on this,” said Fann. “We know where the problems are, so why aren’t we securing that so that the problems don’t happen again? That’s all there is to it.”
Fann called it “frustrating” that the Maricopa County Board of Supervisors pushed back against any scrutiny of their elections. She also called out County Recorder Stephen Richer for falling short of his campaign promises, in which he pledged to right the wrongs of former recorder Adrian Fontes. Fann added that Richer’s public remarks about how their county ran the 2020 election perfectly contradicted an email she brought to the “Conservative Circus” interview, in which Richer said there were “plenty of instances of actual prosecuted and convicted election fraud violations.”
It started in January when several supporters withdrew support of Hobbs’ run to be the Democratic nominee for governor following her comments about a jury’s verdict in a racial and gender discrimination lawsuit by a former staffer.
Then in her role as Arizona Secretary of State, Hobbs was shot down by a superior court judge when she tried to sidestep possible consequences for her planned shut down of the E-Qual system at a time when legislative and congressional candidates were relying on the system to get on the ballot.
Next, Hobbs was called out by Arizona Attorney General Mark Brnovich for her failure to draft an Elections Procedures Manual (EPM) which complies with state law. Without an approved EPM, elections officials across the state are unsure what protocols to follow for the 2022 election cycle.
Earlier this month, Hobbs the candidate has come under scrutiny for the recent announcement that women of color have been appointed as her campaign manager, political director, and Finance Director. Only two of the three live in Arizona, leading to questions of why Hobbs turned to out-of-staters for key campaign roles.
The latest embarrassment came last week when the Secretary, a Democrat, was thrashed by the attorney for several Democratic Party organizations after she argued that the Arizona Supreme Court should listen to her—and her alone—in defense against an effort by the Arizona Republican Party to have voting by mail declared unconstitutional.
According to Hobbs, the justices should reject a motion to intervene filed by the Arizona Democratic Party, the Democratic National Committee, the Democratic Senatorial Campaign Committee, and the Democratic Congressional Campaign Committee. It is those same voters and party leaders that Hobbs will need to get out of the gubernatorial primary in August.
The Democratic groups argue they should have standing to “protect their voters, their candidates, and their interests” as respondents in the case. The AZGOP did not object to the motion, but Hobbs has cried foul against her fellow Democrats, alleging that she is capable of adequately representing those interests.
However, Hobbs has argued that the Arizona Supreme Court has no power to even hear the constitutional challenge. The Democratic intervenors, on the other hand, agree with the AZGOP that the Court “can and should exercise its power” to adjudicate the case.
The State of Arizona is getting no support from the White House against an ongoing invasion by Mexican cartels, which gives Gov. Doug Ducey the authority to deploy the Arizona National Guard in self-defense, according to a legal opinion released by Arizona Attorney Mark Brnovich on Monday.
“The federal government’s failure to secure the border and protect Arizona from invasion is dangerous and unprecedented,” the 25-page opinion states. “Thankfully, the Founders foresaw that States might need to protect themselves from invasion and made clear in the Constitution that States retain the sovereign power to defend themselves within their own territory.”
The attorney general’s opinion was prompted by an inquiry submitted in October by Rep. Jake Hoffman (R-LD12) about whether the Biden Administration “has failed –intentionally or unintentionally– to uphold its obligations” under Article IV of the U.S. Constitution to protect Arizona from invasion.
The opinion contends the federal government “has lost or severely degraded its operational control” of Arizona’s 372-mile border with Mexico, where cartels and gangs are openly trafficking in drugs, weapons, and human beings while engaging in attacks on Arizonans and acting “as if they are above the law.”
Among the issues the attorney general examined in response to Hoffman’s inquiry was the definitions of “actually invaded” and “invasion” as used in the State Self-Defense Clause and the Invasion Clause of the U.S. Constitution.
ARTICLE I, SECTION 10
“…No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”
ARTICLE IV, SECTION 4
“The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”
The examination also included whether a state has constitutional power to defend itself from “hostile non-state actors” such as armed cartels or only an invasion by a foreign power. Finally, the attorney general had to determine whether the current crisis at the Arizona / Mexico border satisfies the definitions of “actually invaded” and “invasion.”
“The violence and lawlessness at the border caused by transnational cartels and gangs satisfies the definition of an ‘invasion’ under the U.S. Constitution, and Arizona therefore has the power to defend itself from this invasion under the Governor’s authority as Commander-in-Chief,” the opinion states, adding that an invasion “permits the State to engage in defensive actions within its own territory.”
The legal questions addressed by the attorney general have not been adjudicated in court with factors similar to the situation in Arizona. However, the opinion was welcomed by Hoffman, who called on Ducey to utilize the powers afforded to him by the U.S. Constitution to immediately secure the border.
“I’m glad to see that Attorney General Brnovich today agreed with my assessment that the crisis occurring on our southern border constitutes an invasion and a total failure by the Biden administration to fulfill its constitutional obligation to protect the people of Arizona,” Hoffman said.“The human smuggling, cartel drugs and violence, sex trafficking, and other illicit activity must end.”
Ducey’s office did not issue a formal comment on whether the governor agrees with the opinion’s legal conclusions of his authority as commander-in-chief. Since April 2021, several dozen National Guard soldiers have been rotated in and out of border county sheriff’s offices to perform administrative, non-law enforcement functions.
This has been well-received by the sheriffs as it frees up deputies to respond to the increase in reported crimes along the border.