Attorney General Mark Brnovich filed his opposition to Planned Parenthood of Arizona’s request that a judge’s ruling that recently reinstated a 1864 abortion ban be put on hold, roundly dismissing the organization’s argument that a tangled legal landscape will cause providers to put off care, ultimately harming women.
Last week, Pima County Superior Court Judge Kellie Johnson ruled that an injunction blocking the 1864 total abortion ban is no longer relevant, after Roe v. Wade was overturned earlier this year. The injunction was implemented while Roe still protected the right to abortion.
Planned Parenthood of Arizona responded by asking the court to stay the ban while the case works its way through the appeal process, saying it was in conflict with more recent abortion legislation and the resulting legal uncertainty could lead to delayed care for women.
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Brnovich disagrees, and says that new abortion legislation actually works in harmony with the territorial-era ban.
Planned Parenthood of Arizona claimed in its most recent court filing that Arizona has a 24-hour waiting period before women can undergo an abortion procedure or receive abortion medication that conflicts with the 1864 law.
But Brnovich said the ban actually works in tandem with the more recent 24-hour law. Under the reinstated ban, no abortions except for those to save the life of the mother may be performed. If there is a medical emergency, he argued, then the 24-hour limit may be ignored. If there is no medical emergency but the woman still needs an abortion to save her life, then the 24-hour rule will be obeyed.
All of this reasoning is based on “the physician’s good faith clinical judgment” – a metric which critics of the ban have previously said is unclear and may result in providers being unwilling to perform necessary procedures for fear of scrutiny and legal consequences. The 1864 law carries with it a mandatory 2 to 5 year prison sentence.
Another argument Brnovich disagreed with is the ban’s purported conflict with the 15-week ban signed into law by Gov. Doug Ducey earlier this year, which went into effect on Saturday. Ducey has said it should take precedence over the 1864 ban, even after the Pima County court ruling. But, according to Brnovich, this ignores explicit language in the 15-week restriction stating that it doesn’t recognize a right to abortion and doesn’t repeal the territorial ban.
Instead, Brnovich said, both bans fit together to prohibit any abortion procedures — except to save the woman’s life. Neither includes exceptions for rape or incest.
“Both [the 15-week ban] and [the 1864 ban] can (and now do) co-exist, allowing prosecutorial discretion as to which law will be charged when both are violated,” reads the brief filed by the Attorney General’s Office.
That prosecutorial discretion, much like a physician’s good judgment, is left up to the individual prosecutor, according to the brief. Pima County Attorney Laura Conover has vowed never to prosecute women who access abortion services or doctors who provide them — and that decision is her prerogative, Brnovich said in his filing.
“The County Attorneys are free to exercise full and independent prosecutorial discretion in deciding how to enforce Arizona’s various abortion regulations,” says the brief.
Johnson, the Pima County judge, didn’t rule on which abortion laws must be upheld or enforced, just on whether an injunction placed on the 1864 law in 1973 was still valid. If Planned Parenthood of Arizona or abortion providers in the state want more clarity, Brnovich said, they’re free to do so by bringing new legal challenges against the state or filing for declaratory relief — a legal process by which a court resolves legal uncertainties. Such cases can be wrapped up relatively quickly, Brnovich said, which nullifies Planned Parenthood of Arizona’s argument that a stay is necessary because the appeals process is lengthy.
“The Court did nothing to prevent PPAZ or the County Attorney from separately challenging or seeking declaratory relief with respect to the 1864 law,” reads the brief filed by the Attorney General.
Brnovich’s brief doesn’t make direct mention of Planned Parenthood of Arizona’s assertion that women will face harm, but instead points out that neither the organization nor Attorney Conover acknowledged the effect resumed abortion services will have on fetuses.
“Neither PPAZ nor the (Pima) County Attorney give any weight to the interests of the unborn,” said the brief.