An over century-old Arizona law that bans abortions in nearly all circumstances can again be enforced after Pima County Superior Court Judge Kellie Johnson on Friday lifted an injunction that had left the law dormant for nearly five decades.
State Attorney General Mark Brnovich asked the court to rule on the injunction after the U.S. Supreme Court overturned Roe v. Wade in its June decision in the Dobbs v. Jackson Women’s Health Organization case in Mississippi.
The decision put the question of abortion policy back in the hands of states. In Arizona, there are conflicting laws on the books, leading to a court challenge.
The basic provisions of the law were first codified by the first territorial Legislature of Arizona in 1864: It mandates two to five years in prison for anyone who provides an abortion or the means for an abortion. The state adopted the law with streamlined language in 1901; it remains on the books today as ARS 13-3603.
Abortion rights advocates are likely to appeal, meaning the state of abortion law in Arizona is still far from settled.
“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 Friday. “I have and will continue to protect the most vulnerable Arizonans.”
History of law and the injunction case
The 1864 law was in effect for much of Arizona’s history, and numerous doctors and amateur abortionists went to prison after convictions for violating it.
A Phoenix chiropractor was appealing his prison sentence in 1973 for performing an abortion when the Roe decision made abortion legal nationwide. A companion law also adopted in the 19th century mandated at least one year in prison for obtaining an abortion. It was repealed only last year, though it’s unclear if any woman served time for it. Congress granted statehood to Arizona in 1912.
In 1973, a Pima County Superior Court judge granted the injunction to Planned Parenthood Arizona (then known as Planned Parenthood of Tucson) just weeks before the Roe decision, based on the concept that Arizona’s right-to-privacy provision did not permit the state to outlaw abortion. The state Court of Appeals overruled the lower court but had no choice but to re-implement the injunction once Roe was decided.
Brnovich, saying he wanted to provide “clarity and uniformity” to state abortion law, moved to lift the injunction in July.
Planned Parenthood argued in an Aug. 19 hearing before Johnson that dozens of abortion-related laws enacted over the years since 1973 essentially create a right to abortion. Licensed physicians should be able to continue providing abortions once all the laws are “harmonized,” and the pre-statehood law could still apply for unlicensed abortion providers, attorneys said.
The state’s lawyers maintained that those laws were passed only because of the limitations set by Roe v. Wade, and that the pre-statehood law should once again be the law of the land now that Roe’s no longer in effect.
Political consequences of ruling
The ruling is likely to exacerbate the political consequences of the Dobbs decision in Arizona.
Supporters of reproductive rights rallied against that decision, and Democratic candidates have sharpened their messaging on the issue with the midterm election approaching, emphasizing Republicans’ preference to restrict abortion or ban it entirely.
This year, Gov. Doug Ducey approved a law that outraged abortion-rights advocates nearly as much as the pre-statehood law. It orders felony charges against doctors who perform abortions on patients who are more than 15 weeks pregnant and contains only limited exceptions for medical emergencies. Women who obtain an abortion would be immune from prosecution.
The new law also contains a provision stating it doesn’t repeal the 1864 law or any other abortion ban.
Reach reporter Stacey Barchenger at firstname.lastname@example.org or 480-416-5669. Follow her on Twitter @sbarchenger.