Arizona moves to impose abortion ban from 1800s as attorney general asks court to lift injunction
Ray Stern
Arizona is one step closer to reviving a law from its territorial days that mandates prison time for abortion providers.
Arizona Attorney General Mark Brnovich filed a 16-page motion with the Pima County Superior Court on Wednesday asking for the lifting of an injunction against the law now that the U.S. Supreme Court has overturned its 1973 decision in Roe v. Wade.
“We believe this is the best and most accurate state of the law,” Brnovich said in a prepared statement. “We know this is an important issue to so many Arizonans, and our hope is that the court will provide clarity and uniformity for our state.”
The move was feared by advocates for legal abortions since last year when it became clear the Supreme Court — made more conservative by three
Trump-appointed justices — could eliminate the federal protections for abortion with a ruling in Mississippi's Dobbs vs. Jackson Women's Health Organization.
The court's ruling took away the constitutional right to abortion and allows states to set their own abortion policies.
A few days later, Brnovich he said he would attempt to revive the 158-year-old territorial law, which authorities have not enforced since 1973.
Brnovich is a Republican in his second term who's running to replace Democrat Mark Kelly in the U.S. Senate — if he can defeat his Republican competitors in the Aug. 2 primary election.
An abortion foe, he had previously joined an amicus brief for the plaintiffs in the Dobbs case and has defended provisions of a 2021 anti-abortion law all the way up to the U.S. Supreme Court.
Gail Deady, staff attorney at the Center for Reproductive Rights, said in a statement that Arizonans' health decisions shouldn't be "dictated by a century-old, draconian law."
"It is outrageous that Arizona’s attorney general is trying to revive this zombie law that has long been blocked," Deady said. "The U.S. Supreme Court’s decision to overturn Roe v. Wade has already caused absolute chaos in states like Arizona, and this move only adds to the mass confusion on the ground. Arizona’s multiple, conflicting abortion laws on the books have trapped providers and patients in limbo, leaving them without any sense of whether they can provide and access abortion care."
Law under injunction since Roe
Some states have laws protecting abortion and others had enacted "trigger" laws to ban abortion in case Roe was overruled. Arizona has a 158-year-old anti-abortion law still on the books.
First codified in 1864 in Arizona's Howell Code, a list of laws developed for the new Arizona Territory, it lives on with its archaic wording in Arizona Revised Statute 13-3603, which states:
"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."
Companion laws added later required a one-year prison sentence for women who asked for or received an abortion and banned advertising for abortion and contraception services. The law punishing women for seeking abortions was repealed last year by another law, Senate Bill 1457. That law signed by Gov. Doug Ducey also bans abortions sought for fetal "genetic abnormalities" and conveys citizenship rights to fetuses.
'Terrifying reality': Arizona abortion providers say state has abandoned patients
All states had laws outlawing abortion at some point. For more than a century, Arizona sent doctors and housewives to prison for performing or receiving abortions that occasionally resulted in the death of patients.
The situation changed with the civil rights era of the late 1960s, and states including New York and California legalized the procedure.
In 1971, Planned Parenthood of Tucson challenged the state's anti-abortion laws in court. As noted in an explanatory paper by Arizona State University's Embryo Project, the group's lawyers argued that the laws violated an implied right to privacy in the U.S. Constitution, presented an overreach of police power and that they affected low-income people unfairly because they couldn't travel to another state to obtain an abortion.
After the federal court in Arizona wouldn't take up the issue, the group sued then-Arizona Attorney General Gary Nelson in Pima County Superior Court. Eventually, a Superior Court judge ruled in 1972 that the laws were unconstitutional and placed an injunction against enforcing them on Nelson and the Pima County Attorney's Office.
The Arizona Court of Appeals overturned the decision in January 1973. But a few weeks later, when the U.S. Supreme Court made its landmark ruling in Roe v. Wade, the appellate court reversed its decision and modified the injunction, making it applicable "as to all."
Law should continue 'unimpeded'
Brnovich said the state Legislature "re-enacted" the law in 1977. He also pointed out that a new law signed this year by Ducey that bans abortions after 15 weeks specifically stated that it didn't repeal the pre-statehood law.
The motion, written by four assistant attorney generals, clears up some of the confusion that has reigned since the Dobbs ruling. It does not seek relief from the injunction against the advertising ban law or the since-repealed law that would punish women for seeking an abortion. It states that the 1973 injunction was modified to include all Arizonans, and did not just cover Pima County and the Attorney General's Office, as both Brnovich and Maricopa County Attorney Rachel Mitchell had suggested it might.
The Dobbs ruling "pav(es) the way for 13-3603 to continue in effect unimpeded, as the Legislature intended," adding later that the Legislature "never acquiesced" to the conclusion that the law was unconstitutional.
The motion states three times that the 1973 appellate court decision was "well-reasoned." Because of that and the Dobbs ruling, continuing the injunction would affect the "substantial rights" of Arizona to enact and prosecute its own laws.
"The unborn are also a represented party in this case," the motions asserts, "and their substantial rights are clearly affected."
The state asks the court to grant relief based on a court rule that "applying [the judgment] prospectively is no longer equitable." If that isn't good enough, relief is still warranted because "the overruling of Roe is an extraordinary circumstance that justifies relief."
The motion asks for oral arguments on the matter.
Brnovich already has had one setback on abortion law this week.
On Monday, a federal court blocked the personhood rights for fetuses provision of Senate Bill 1457. The court previously had blocked a provision that barred abortions sought due to genetic abnormalities.
Most abortion providers in Arizona stopped their services two weeks ago over uncertainty about Senate Bill 1457 and the status of the pre-statehood ban.
What happens next?
Planned Parenthood of Arizona, which is now an apparent plaintiff in the case as the successor to Planned Parenthood of Tucson, didn't respond immediately to a request for comment. The plaintiffs also included a group of doctors, most of whom are deceased now.
Pima County Superior Court spokeswoman Krisanne LoGalbo said the plaintiffs in the case have 10 business days to respond to the motion, plus five calendar days for mailing.
It's unclear when the court will respond to the request and if the law would be enforced immediately if the injunction is lifted.
Reach the reporter at rstern@arizonarepublic.com or 480-276-3237. Follow him on Twitter @raystern.