Arizona can enforce a near-total ban on abortions that has been blocked for nearly 50 years, a judge ruled Friday, meaning clinics statewide will have to stop providing the procedures to avoid the filing of criminal charges against doctors and other medical workers.
The judge lifted a decades-old injunction that has long blocked enforcement of the law on the books since before Arizona became a state that bans nearly all abortions. The only exemption is if the woman’s life is in jeopardy.
The ruling means people seeking abortions will have to go to another state to obtain one. An appeal of the ruling is likely.
The decision from Pima County Superior Court Judge Kellie Johnson came more than a month after she heard arguments on Republican Attorney General Mark Brnovich’s request to lift the injunction. It had been in place since shortly after the U.S. Supreme Court’s 1973 decision in the Roe v. Wade case, which held women had a constitutional right to abortion.
The near-total abortion ban was enacted decades before Arizona was granted statehood in 1912. Prosecutions were halted after the injunction was handed down following the Roe decision. Even so, the Legislature reenacted the law several times, most recently in 1977.
Assistant Attorney General Beau Roysden told Johnson at an Aug. 19 hearing that since Roe has been overturned, the sole reason for the injunction blocking the old law is gone and she should allow it to be enforced. Under that law, anyone who performs a surgical abortion or provides drugs for a medication abortion can face two to five years in prison.
An attorney for Planned Parenthood and its Arizona affiliate argued that allowing the pre-statehood ban to be enforced would render a host of more recent laws regulating abortion meaningless. Instead, she urged the judge to let licensed doctors perform abortions and have the old ban only apply to unlicensed practitioners.
The judge sided with Brnovich, saying that because the injunction was filed in 1973 only because of the Roe decision, it must be lifted it in its entirety.
“The Court finds an attempt to reconcile fifty years of legislative activity procedurally improper in the context of the motion and record before it,” Johnson wrote. “While there may be legal questions the parties seek to resolve regarding Arizona statutes on abortion, those questions are not for this Court to decide here.”
In overturning Roe on June 24, the high court said states can regulate abortion as they wish.
“We applaud the court for upholding the will of the legislature and providing clarity and uniformity on this important issue," Brnovich said in a statement. "I have and will continue to protect the most vulnerable Arizonans.”
A physician who runs a clinic that provides abortions said she was dismayed but not surprised by the decision.
"It kind of goes with what I’ve been saying for a while now –- it is the intent of the people who run this state that abortion be illegal here,” Dr. DeShawn Taylor said. “Of course we want to hold onto hope in the back of our minds, but in the front of my mind I have been preparing the entire time for the total ban.”
Abortion providers have been on a roller coaster since Roe was overturned, first shutting operations, the re-opening, and now having to again close them.
Johnson, the judge, said Planned Parenthood was free to file a new challenge. But with Arizona's tough abortion laws and all seven Supreme Court justices appointed by Republicans, the chances of success appear slim.
What’s allowed in each state has shifted as legislatures and courts have acted. Before Friday's ruling, bans on abortion at any point in pregnancy are in place in 12 Republican-led states,
In another state, Wisconsin, clinics have stopped providing abortions amid litigation over whether an 1849 ban is in effect. Georgia bans abortions once fetal cardiac activity and be detected and Florida and Utah have bans that kick in after 15 and 18 weeks gestation, respectively.
The ruling came a day before a new Arizona law banning abortions after 15 weeks of pregnancy takes effect. The law passed by the Republican-controlled Legislature and signed by GOP Gov. Doug Ducey in March was enacted in hopes that the U.S. Supreme Court would pare back limits on abortion regulations. It mirrored a Mississippi law that the high court was considering at the time that cut about nine weeks off the previous threshold.
Ducey has argued that the new law he signed takes precedence over the pre-statehood law, but he did not send his attorneys to argue that before Johnson.
The old law was first enacted as part of the set of laws known as the “Howell Code” adopted by 1st Arizona Territorial Legislature in 1864.