Arizona abortion ruling unlikely to resolve issue

By Howard Fischer
Capitol Media Services
PHOENIX -- A ruling Friday by a Pima County Superior Court judge over Arizona's abortion restrictions is unlikely to resolve the issue.
And the legal fights to come could be not over what Kellie Johnson wrote in her 8-page ruling but what she didn't say.
The judge made it clear she believes the June decision by the U.S. Supreme Court overturning its historic 1973 Roe v. Wade means states are now free to have their own abortion laws. And in the case of Arizona, Johnson said that means a territorial-era law outlawing most abortions, never repealed after the 1973 ruling but enjoined since then, is now once again enforceable.
Only thing is, the judge never ruled in the legality of a measure approved earlier this year that allows women to terminate a pregnancy through the 15th week of gestation. All she said, in essence, is that the newer law does not supersede or replace provisions in the older one.
And as far as Gov. Doug Ducey is concerned, the 15-week law he signed earlier this year took effect as scheduled on Saturday, meaning there will be two abortion laws on the books -- and no clear answer as to which is enforceable.
He isn't the only one pointing out the issue -- and the need to get clarification, if not from Johnson then from an appellate level court.
"This decision to lift the injunction on the previously enjoined abortion ban, without clarifying how Arizona’s other existing laws interact with it, has created chaos and confusion'' said a statement from Planned Parenthood of Arizona.
But Brittany Fonteno, the organization's president, said that isn't the only legal issue she believes is not settled despite Johnson's ruling.
"Let me be clear, this is not the end of the fight,'' she said. "This harmful ban has no place in Arizona and we will persist until that is achieved.''
The fight is over a law that traces its roots back to 1864 which makes it a crime to perform an abortion except to save the life of the mother. The statute, which carries a penalty of up at least tow and as many as five years in state prison, has no exceptions for rape or incest.
About the only change in the last 158 years was a 2021 vote by lawmakers to exempt the pregnant woman from any penalty.
Lawmakers never repealed the measure even after the Supreme Court voided abortion restrictions in 1973 and even after the state Court of Appeals, citing that ruling, enjoined its enforcement.
That left Arizona law allowing abortions up until fetal viability, something that generally is thought to occur between weeks 22 and 24, a restriction that Roe and subsequent high court rulings allowed the state to enforce.
All that changed in June when the justices overturned Roe, returning the power to regulate or ban abortions outright. And Johnson, ruling on a request by Attorney General Mark Brnovich, decided that decision required her to dissolve that injunction, bringing the law back to life.
She rejected arguments by attorneys from Planned Parenthood that abortion restrictions passed since 1973 effectively legalized the procedure and repealed the 1864 law. And Johnson specifically said that includes SB 1164, the 15-week ban approved by Arizona lawmakers earlier this year on the belief the justices would uphold a similar Mississippi law but leave Roe untouched.
Nor was she willing to accept a legal theory offered by Planned Parenthood that the ban on performing abortions applies only to non-medical personnel, with doctors subject to the laxer 15-week limit.
But nothing in her ruling addresses whether that 15-week law also is legal, as Ducey contends.
Johnson acknowledged her Friday ruling was designed solely to deal with whether to dissolve that 1973 injunction.
"While there may be legal questions the parties seek to resolve regarding Arizona statutes on abortion, those questions are not for this court to decide here,'' the judge wrote.
Aside from the 15-week law, there's also the issue of the constitutionality of the near total ban.
There have been arguments advanced that the statute runs afoul of the privacy provision of the Arizona Constitution. In fact, Kris Mayes, the Democrat candidate for attorney general, has advanced that theory and promised not to enforce the law if elected.
Johnson's ruling drew criticism from a variety of sources.
Much of that came from Democrats running for office, including gubernatorial hopefil Katie Hobbs and Kris Mayes who wants to be attorney general. Both have sought to use the issue -- and their foes support for outlawing abortion -- to generate votes in what could be close general election contests.
Politics also figured into the condemnation of the ruling by the Committee to Protect Health Care, an association of doctors.
"Physicians are outraged by this court decision and the fact that (Republican candidate for governor) Kari Lake has indicated she would work to enforce this cruel law as governor,'' said Dr. Cadey Harrel, a Tucson family physician and the committee's Arizona state lead.
"This dangerous and archaic ban will take away Arizonans’ autonomy over their own bodies and livelihood, and put them at risk of severe health issues and even death,'' she said in her statement. "When complications arise during pregnancy, doctors need to be able to provide the full range of treatment options, including abortion, to ensure the best outcomes for our patients.''
Lake, who previously called abortion "the execution of the baby in the mother's womb,'' neither issued a statement on the ruling nor responded to a request for comment.
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