Arizona Attorney General Mark Brnovich is asking a Pima County judge to immediately restore his power and the power of local prosecutors to bring criminal charges against doctors who perform abortions.
In legal documents filed Wednesday, Brnovich argues that the only reason the Arizona Court of Appeals barred enforcement of the state’s anti-abortion law was the U.S. Supreme Court’s ruling. of 1973 in Roe v. Wade. This landmark decision and a follow-up decision in a 1992 case called Casey v. Planned Parenthood have stated that women have the constitutional right to terminate a pregnancy prior to fetal viability.
But those rulings were overturned by judges late last month in the case over the validity of a Mississippi law, Brnovich said.
“The Supreme Court of the United States has ruled that the Constitution does not confer the right to abortion,” the Republican attorney general said.
People also read…
He pointed out that Judge Samuel Alito wrote that “Roe and Casey must be struck down and the power to regulate abortion must be returned to the people and their elected representatives.”
“The (Arizona) law is now back to what it was before Roe,” Brnovich said.
The only thing blocking that, he said, is the injunction he now wants to dissolve.
Timing, opposition questions
How quickly this may happen remains unclear.
Brnovich requested closing arguments allowing members of his staff to present their case directly to Superior Court Judge Kellie Johnson. No date has been set for oral arguments.
There is also the question of the opposition.
The original injunction was obtained by the Planned Parenthood Center of Tucson, an organization that no longer exists.
But Planned Parenthood Arizona will file a response to “explain to the court why it should reject the attorney general’s latest attempt to play politics with people’s lives,” its president, Brittany Fonteno, said Wednesday.
“Attorney General Brnovich has proven once again that he is out of touch with the majority of Arizonans who support safe and legal abortion,” she said in a written statement.
And Gail Deady, a lawyer with the Center for Reproductive Rights, which represents doctors and others on abortion issues, called it “outrageous that the Arizona attorney general is trying to revive this zombie law that has been blocked”.
“The personal health decisions, lives and futures of Arizonans should not be dictated by a century-old, draconian law,” Deady said in a prepared statement, saying his organization “will continue to uphold the basic right of Arizonans to access essential health care.’
Only Pima County is at stake?
There is another legal problem.
Brnovich argues that the injunction only covers the ability of his office and Pima County prosecutors to enforce the abortion ban that dates back to 1901 — and only in Pima County.
He says the old pre-Roe law is now in effect in the other 14 counties and prosecutors are free to bring criminal charges against doctors who violate it.
This issue, however, was never argued. And it may not be for some time, as Planned Parenthood and other key abortion providers have halted performing the procedure until the state of the law is clarified.
Brnovich, in his new legal filing, said there was nothing unclear about the law — and state lawmakers’ desire to ban all abortions.
“The Arizona Legislature has never acquiesced in the finding that the first (pre-1973 law) is unconstitutional,” he wrote. “Instead, in anticipation of Roe’s overturning by the U.S. Supreme Court, the Legislature has repeatedly preserved Arizona’s legal ban on performing abortions except to save the life of the mother. .”
For example, Brnovich noted, lawmakers recodified the exact same 1901 law just four years after Roe, preserving the same language but simply changing the law number.
And then there was a vote earlier this year by the Republican-controlled Legislature to ban abortions after 15 weeks, which he said lawmakers did “when it was unclear how the Supreme Court would rule.” in the Mississippi case. But Brnovich pointed out that even this stated measure did not repeal or nullify the law that was in effect when Roe was ruled.
All of this, he said, requires the trial judge to issue an order reopening the case and setting aside the injunction.
Background to the case
The case dates back to 1971 when the Planned Parenthood Center in Tucson, 10 doctors and an unnamed pregnant woman who was seeking an abortion filed suit.
In the original documents, the plaintiffs sought to bar the state from enforcing the law, alleging that “except for the risk of criminal prosecution,” Planned Parenthood would refer some of its clients to doctors to perform the procedure. The lawsuit acknowledged that “the procedures were not necessary to save the lives of these pregnant women.”
Pima County Superior Court Judge Jack Marks agreed with the challengers.
“A fetus is not a person entitled to Fourteenth Amendment (equal protection) rights and does not have constitutionally protected rights,” he wrote. The judge also said the state’s ban “is overbroad and violates women’s fundamental rights to marital and sexual privacy.”
The Court of Appeal initially reversed its decision, saying, among other things, that the fact that the law does not provide exceptions for rape or incest does not make it too broad. The judges also rejected arguments that the law interferes with the right to religious freedom or discriminates against poor women.
But the court reversed its position in 1973, after the US Supreme Court ruling, with the justices saying they were bound by the Roe ruling.
The leader of Arizona’s largest abortion provider said Tuesday that her organization would not resume proceedings in Pima County, even though a federal judge blocked a fetal ‘personality’ law they feared it does not lead to criminal prosecution of doctors and others.
Here’s why a federal judge blocked Arizona from using a law requiring state laws to be interpreted to grant “personality” rights to an unborn child.
For Star subscribers: The judge is hearing arguments about whether the law could be used to bring criminal charges against Arizona doctors who perform otherwise legal abortions, including those to save the life of the mother.