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Arizona judge reinstates 19th-century abortion ban

Sept. 24, 2022 Updated Sat., Sept. 24, 2022 at 9:23 p.m.

Nurse Ashleigh Feiring gives Kimberly Ceus an ultrasound Aug. 1, 2022, at Camelback Family Planning in Phoenix, Ariz.  (TRIBUNE NEWS SERVICE)
Nurse Ashleigh Feiring gives Kimberly Ceus an ultrasound Aug. 1, 2022, at Camelback Family Planning in Phoenix, Ariz. (TRIBUNE NEWS SERVICE)
By Andrew Jeong Washington Post

An Arizona judge revived a ban on abortion that dates back to the mid-19th century, lifting a decades-old injunction that means the procedure is effectively illegal in the state at all times except when a pregnant person’s life is at risk.

Pima County Superior Court Judge Kellie Johnson’s ruling was released Friday, a day before a law that restricts abortions after 15 weeks of pregnancy was due to take effect. The conflicting restrictions on abortion had created confusion, with state Attorney General Mark Brnovich (R) pushing to enforce the tougher prohibitions and Gov. Doug Ducey (R) previously insisting that the 15-week ban was the law of the land.

Johnson cited the U.S. Supreme Court’s June decision to overturn Roe v. Wade, which established a fundamental right to abortion, as rationale for lifting the injunction. Roe had been the basis of the 1973 injunction that prevented bans on abortion from being enforced, Johnson ruled. And because the nation’s top court had returned decisions on the procedure to Congress and the states, that injunction can also be annulled, she wrote.

The Arizona law threatens abortion providers with between two and five years in prison. It originated from a 1864 law, and has no exception for victims of rape or incest. Some states did not update the laws on their books after Roe was decided in 1973, and the overturning of that decision has caused confusion from Michigan to West Virginia as to whether those laws still apply.

Johnson indicated that the older law, which was updated and codified in 1901, supersedes the recently passed law that was to take effect Saturday. “Most recently in 2022, the Legislature enacted a 15-week gestational age limitation on abortion. The legislature expressly included in the session law that the 15-week gestational age limitation does not ‘repeal’” the older ban, she wrote.

Ducey’s office didn’t immediately respond to a request for comment late Friday. Brnovich thanked Johnson on Twitter, saying that the court had provided “clarity and uniformity on this important issue. I have and will continue to protect the most vulnerable Arizonans.”

Planned Parenthood Arizona, which was a plaintiff in the case, criticized the court for reviving an “archaic” law that it said would send “Arizonans back nearly 150 years.” The reproductive health organization, which can appeal the ruling, also said it “will never back down.”

Democratic gubernatorial nominee Katie Hobbs said in a statement that she was “mourning” the decision and pledged to veto antiabortion legislation if elected.

Johnson’s ruling means the older abortion ban “is no longer unenforceable” and Brnovich’s position as the state’s chief law enforcement officer “opens the door to prosecutions under that law,” said Kaiponanea Matsumura, a family law professor at Loyola Marymount University who previously taught in Arizona.

Barbara Atwood, a law professor emerita at the University of Arizona, predicted further legal and legislative wrangling over abortion in Arizona.

The 1901 law “directly conflicts with many laws regulating abortion in Arizona enacted since 1973,” she said, including those that permit the procedure in emergencies such as pregnancies that can result in the loss of major organ function for pregnant women and other pregnant individuals.

“It is an unworkable situation,” she said.

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