A judge cleared the way for criminalizing nearly all abortions in Arizona, allowing the state’s Republican attorney general his choice to enforce a law that dates back to 1864 when the Civil War was still raging, when the art of surgery was in its infancy, and nearly 50 years before women could vote.
There will be no exceptions for women who have been raped or people who have been victims of incest to get an abortion in Arizona. And medical providers who aid in abortion could face between 2 and 5 years in prison.
The only exception the law makes is for when an abortion is “necessary to save her life.” The lack of clear medical guidance has drawn a chilling response from those who fear the human-rights and health abuses that will ensue as doctors and nurses weigh prison against endangering a mother’s life.
Pima County Superior Court Judge Kellie Johnson ruled late Friday, siding with the state and rejecting Planned Parenthood’s arguments that it’s absurd to revert to a territorial law when there have have been a patchwork of abortion laws on the books, including the law that the GOP-controlled Legislature passed, Gov. Doug Ducey signed and would’ve gone into effect Sept. 24. That law provided more leeway, making abortions legal up to 15 weeks of pregnancy and included similar restrictions against allowing women and pregnant people the choice to end their pregnancy in cases of rape or incest.
Johnson’s ruling comes in response to Attorney General Mark Brnovich’s petitioning the court in July to allow the implementation of what is effectively a blanket ban on abortion. The law now on the books was passed before Arizona became a state in 1912.
The judge’s decision is the latest in a back-and-forth battle about what abortion services can be legally offered in the state. After the U.S. Supreme Court ruling on Dobbs v. Jackson’s Women’s Health Organization was issued in June, overturning the constitutional right to an abortion, where that right stands in Arizona has been murky.
“It’s been a rollercoaster of emotions,” Ana Soto, a University of Arizona student, said in reaction to the ruling. Soto was on campus and like many across Arizona was still reeling after learning of the near total ban on abortions in their home state.
The 1973 case Nelson v. Planned Parenthood Center of Tucson established the legality of abortion in Arizona by overturning an earlier ban that until, Friday, had stood in the way of Brnovich’s stance on criminalizing abortions under the 158-year-old measure. Only two weeks after the 1973 ruling, the Roe v. Wade decision was issued, establishing a nationwide constitutional right to abortion.
Johnson clarified the state of affairs on Friday by stripping Arizonans of the right to reproductive healthcare. She noted in her ruling that Planned Parenthood “may move to amend its Complaint” or may file a new action to challenge the law or the ruling.
“Today’s ruling by the Pima County Superior Court has the practical and deplorable result of sending Arizonans back nearly 150 years. No archaic law should dictate our reproductive freedom and how we live our lives today,” said Brittany Fonteno, President and CEO of Planned Parenthood Arizona.
“We know that today’s ruling does not reflect the will of the people, as Arizonans are overwhelmingly in favor of abortion access,” Fonteno said. “Instead, it is the result of extremist Attorney General Brnovich and other anti-abortion elected officials who are on a mission to strip Arizonans from their right to live under a rule of law that respects our bodily autonomy and reproductive decisions. Let me be clear, this is not the end of the fight, this harmful ban has no place in Arizona and we will persist until that is achieved.”
Shortly after the ruling came down, Brnovich said in a press release, “We applaud the court for upholding the will of the legislature and providing clarity and uniformity on this important issue. I have and will continue to protect the most vulnerable Arizonans.”
A poll conducted this May found that almost 90% of registered Arizona voters were in favor of abortion remaining legal.
The new law will especially burden people of color, the poor, and other vulnerable or marginalized communities, as health experts say it will force people to travel to seek abortions, or rely on dangerous black-market abortion services.
Arizonans seeking abortion care may go to neighboring states such as New Mexico or California, as well as a clinic in Baja California, but costs and planning logistics can be prohibitive. Abortionfinder.org also offers a simple tool to find the nearest abortion services.
Citing confusion “even among our state’s highest elected officials, as to the status of abortion access in Arizona,” Planned Parenthood of Arizona is appealing last Friday’s decision. Fonteno said in a statement on Monday that “members of our community once again have been and will continue to be denied medical care that they deserve and need while this decision is in effect. This is unacceptable.”
The organization is seeking an immediate stay of the Pima County Superior Court’s Friday ruling.
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Rights in peril across the country
While Brnovich has been pushing to turn back the clock on reproductive rights to the Civil War era, Planned Parenthood Arizona and others were arguing that abortion was legal in Arizona, and should remain so.
In court, Planned Parenthood claimed that allowing the law to take effect would undo a multitude of other laws regulating abortion.
Friday’s ruling preempts the 15-week ban that would’ve gone into effect Sept. 24, which would have affected about 5 percent of people seeking an abortion. After Johnson’s decision, closer to 100 percent of people seeking an abortion will be legally prohibited from reproductive care.
While a host of other states had “trigger” laws, which automatically applied once Roe v Wade was overturned, Arizona relied on a series of laws to regulate abortion. The 1864 ban now on the books not only outlaws abortion, but criminalizes anyone who conducts an abortion or helps a woman obtain medicine for an abortion, with “imprisonment in the state prison for not less than two years nor more than five years.”
Other states, too, have gone back and forth in permitting access to abortion care since the Dobbs decision. In Indiana, a judge recently halted a ban on most abortions, just a week after a new prohibitive law took effect.
In Kansas, voters rejected a state constitutional amendment that would have said there was no right to an abortion. In California, voters will decide in November whether or not to enshrine the right to abortion in the state constitution. And in a host of other states, advocates and lawmakers have been fighting to claw back the health right.
“This decision is out of step with the will of Arizonans,” said Alexis McGill Johnson, president and CEO of Planned Parenthood Federation of America in a statement. That will be tested in Arizona’s November elections.
Abortion on the ballot
Despite Friday’s ruling, access to abortion care may not be settled for long. Legal challenges are inevitable, and providers still need to parse the patchwork of state laws, as well as possibly contend with a national ban after 15 weeks.
The proposed national ban would supersede state laws that allow abortions after 15 weeks, but leave in place stricter state prohibitions like the one that now exists in Arizona.
How Arizona votes in November, and who is elected as governor, could help decide the extent of legal abortion services. In nine other states across the country, abortion is on the ballot.
Democratic gubernatorial candidate Katie Hobbs released a statement on Twitter shortly after the ruling, saying she was “outraged and devastated by today’s decision by the Pima County Superior Court to allow a territorial ban on abortion to take effect.” The law, she said, “will have dire consequences on the health and well-being of Arizona women and their families, and that if elected, she would do “everything in my power to protect this right.”
In May, Republican Arizona gubernatorial candidate Kari Lake called abortion “the ultimate sin” and told KTAR it should be regulated at the state level. On Sept. 20, she posted video of herself at a rally, saying , “I would never keep a D&C procedure from a woman having an ectopic pregnancy or a miscarriage.”
Brnovich lost his bid for a senate seat in the primary leaving his attorney general position open. Now, Democratic candidate Kris Mayes faces Republican candidate Abe Hamadeh in a pivotal race for what the future holds for criminalizing abortion in Arizona. Mayes released a video on Twitter late Friday, calling Johnson’s ruling a “terrible, terrible development.”
“It means that the women of this state now have fewer rights than I had, and so many of us had for the last 50 years,” Mayes said. “We refuse to go backwards. Let’s fight this and let’s do it in this election. Our rights are on the ballot.”
Neither Hamadeh’s campaign website nor his Twitter account included a statement Friday on Johnson’s ruling. Under primary issues on his campaign website, he states, “The most fundamental right enshrined in the Constitution is the right to LIFE. I will fight to protect the rights of our children at all stages, beginning at conception, and ensure that our laws to protect life are fully implemented.”
After Johnson’s ruling, there were immediate calls to protest across the state. Planned Parenthood of Arizona reminded voters that ballots for the November midterm elections will be mailed out in 19 days.
“It is totally scary,” said Nadia Swansey, “I feel very strongly, especially as a Black woman in America.” She added, “It’s unfortunate, but hopefully, we can make a change.”
Reporters Kirsten Dorman and Grace Benally contributed to this story