People talk about Friday’s ruling in Pima County Superior Court as if it’s left abortion rights in Arizona in an uncertain state.
That’s not really the case. A ban is what supporters were hoping for when they pushed Arizona’s latest abortion law, and it’s what they’ve got out of the ruling, in practice at least.
On its surface, the law passed in March banned abortions after 15 weeks of pregnancy, imitating a new law in Mississippi. But that limit, as strict as it seemed, was just a backup plan to the real objective, the ban that was in Section 2 of the law.
That scenario is what played out Friday when Pima County Superior Court Judge Kellie Johnson issued her ruling. Now we revert to a law that originated in 1864, in Arizona’s first territorial Legislature, that amounts to a ban on abortion with the narrowest exception.
To understand how Arizona suddenly became a state where abortion is banned, except in situations where the mother’s life is in danger, you can go all the way back to that 1864 legislature, as historian Heather Cox Richardson did in a letter published Saturday.
The author, most recently, of a book called “How the South Won the Civil War,” Richardson happens to have spent considerable time reading the session laws of the 1864 legislature, she told me Tuesday. Amusingly, as those 27 men in that first Legislature met in Prescott, among their important acts was granting divorces to a couple of local officials.
Their laws also regulated dueling and poisoning, which was the context of the law on inducing miscarriage, she said.
“The section this appears in is entirely about regulating mens’ behavior,” Richardson said. “What they’re concerned about is men hurting women.”
Of course, they also granted men monstrous rights: The age of sexual consent was set at 10.
Anticipating Roe ruling
The law dealing with inducing miscarriages was changed in 1901, then suspended in 1973, after the Roe v. Wade ruling. Then, on Dec. 1 last year there was a momentous oral argument heard in the U.S. Supreme Court.
Dobbs vs. Jackson Women’s Health Organization was about a Mississippi law banning abortion after 15 weeks of pregnancy, but it also set up the possibility of overturning the constitutional right to an abortion.
As president, Donald Trump had named three justices, who seemed inclined to overturn Roe v. Wade, despite their stated respect for precedent. Nobody knew for sure. It was possible that in Dobbs, the court would simply confirm Mississippi had the right to impose a 15-week limit on abortions without overturning Roe.
Cathi Herrod, the longtime leader in opposing abortion rights at the Center for Arizona Policy, and Sen. Nancy Barto, the bill’s prime sponsor, both told me the intent of the bill was to cover their bases. They wanted to at minimum set a 15-week limit, but also allow for the historic ban to kick in.
“It should be clear from the plain language in the bill that the intent of the legislation was to provide as much protection for preborn children as possible and in the event that the SCOTUS overturned Roe, that Arizona’s pre-1973 law would still be in place and pre-eminent,” Barto told me in an email Monday.
That interpretation is being disputed in court. But the language and intent of the law is clear, and it should have been clear to Ducey, who signed the bill, as well as everyone who voted for it. They were voting for a ban.
Section 2 of SB 1164 says “This act does not ... repeal, by implication or otherwise, section 13-3603, Arizona Revised Statutes, or any other applicable state law regulating or restricting abortion.”
That law, ARS 13-3603, is the most recent version of the 1864 law. This is how it’s worded:
“A person who provides, supplies or administers to a pregnant woman, or procures such woman to take any medicine, drugs or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless it is necessary to save her life, shall be punished by imprisonment in the state prison for not less than two years nor more than five years.
Abortion banned now
Then May 2 came, and Supreme Court Justice Samuel Alito’s draft opinion overturning Roe v. Wade was leaked. And on June 24, that leaked opinion was the basis for the Supreme Court’s ruling, overturning the constitutional right to an abortion and throwing the issue to the states.
Ducey has argued that the 15-week ban is in effect, even now, but that’s the coward’s way out of the position he put us in by signing that law. The upshot for women now is that they can’t get an abortion in Arizona. Understandably, the facilities that offer abortions aren’t putting their providers in the position of going to prison over a disputed law.
That means that not just women who have an unwanted pregnancy but people in dangerous medical predicaments can’t get treatment. Amy Fitch-Heacock, a co-founder of Arizonans for Reproductive Freedom, argued that the original abortion ban intended to protect women from unsafe abortion, which is not much of a risk in today’s medical environment.
This week, Fitch-Heacock said, somewhere in Arizona, women will find out they are pregnant with non-viable fetuses. Rather than having an abortion, they’ll have to wait until a miscarriage occurs, risking infertility and other damage.
Politicians such as Maricopa County Attorney Rachel Mitchell have argued that the legal issue of which law takes precedence remains unsettled. In a misleading statement, Mitchell said “I will not prosecute women for having abortions.” That’s a red herring, because it is the providers, not the recipients, who can be prosecuted under the law.
In any case, it’s true that Planned Parenthood is seeking a stay of Johnson’s ruling as it pursues an appeal. To that extent, the law is unsettled.
But on a practical level, the issue is settled for now. Abortion is unavailable in Arizona, as the supporters of this year’s law wanted.
If Ducey and the legislative leaders who put us in this situation don’t like it, they have the power to fix it.
And if they don’t, the voters should.
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