Virtually all abortions in Arizona are now illegal.
Late Friday, Pima County Superior Court Judge Kellie Johnson rejected arguments by Planned Parenthood of Arizona that a law, on the books since Arizona’s territorial days, was replaced when lawmakers earlier this year approved a ban on abortions after 15 weeks of pregnancy.
The territorial-era law, a version of which dates to 1864, has only a single exception: to save the life of the mother. It prohibits the procedure including in cases of rape or incest.
The old law was never repealed, but could not be enforced, after the U.S. Supreme Court ruled in 1973's Roe v. Wade case that women had a constitutional right to abortion.
Planned Parenthood attorney Andrew Gaona had argued Johnson needed to harmonize the old law with what has been enacted since. That includes the 15-week ban approved this year by the Republican-controlled Arizona Legislature, which was set to take effect Saturday, Sept. 24.
Planned Parenthood asked Johnson to rule that the new law applies only to doctors, with the old outright ban applying to everyone else.
She refused, saying her job was only to determine whether the injunction against enforcement of the territorial-era law, issued by the Arizona Court of Appeals in 1973 — after the Roe ruling — is still valid.
The judge said it is not, now that the U.S. justices overturned Roe this summer. What happened since, including approval of the 15-week ban, is legally irrelevant, Johnson said.
"The court finds modifying the injunction to harmonize laws not in existence when" the injunction request was filed "is procedurally improper,'' the judge wrote.
She said a carve-out exempting doctors from the outright 1864 ban — the argument advanced by Planned Parenthood — "is not consistent with the plain language (of the territorial law) which contains no such exception.''
There is also the fact that when lawmakers approved the 15-week ban — before the Supreme Court overturned Roe in June — they spelled out they were not repealing the old law.
Johnson has now given Republican Attorney General Mark Brnovich permission to enforce the old law.
“We applaud the court for upholding the will of the legislature and providing clarity and uniformity on this important issue,’’ Brnovich said in a written statement. “I have and will continue to protect the most vulnerable Arizonans.’’
However, C.J. Karamargin, press aide to Republican Gov. Doug Ducey, pointed out that while Johnson said the 1864 law can be enforced, the judge never specifically voided Senate Bill 1164, the 15-week ban the governor signed into law earlier this year.
And Karamargin said that, as far as Ducey is concerned, that law takes effect as scheduled Saturday.
That sets the stage for someone to ask the Arizona Supreme Court for guidance on which law takes precedence.
There was no immediate response from Planned Parenthood.
Pima County Attorney Laura Conover, a Democrat who sided with the organization, said her office now “will be looking at available legal remedies,’’ though she did not spell out what those are.
“Having a near complete ban on abortion procedures puts people at risk,” Conover’s statement said. “... Additionally, the near total ban provides no consideration for victims of rape and incest, making society more vulnerable to these violent crimes. My priorities as Pima County Attorney are public safety and public health. I join our Sheriff and our Tucson Police Chief in reassuring the residents of Pima County of those priorities.”
Cathi Herrod, president of the anti-abortion Center for Arizona Policy, said there are dozens of “pregnancy resource centers’’ throughout Arizona that can provide help to women, from prenatal care and adoption support to car seats and strollers.
“Arizona can and will care for both mother and her unborn child,’’ Herrod said.
Johnson emphasized she was not ruling on the constitutionality of the old law but dealing only with the 1973 injunction.
There have been arguments advanced that the statute runs afoul of the privacy provision of the Arizona Constitution. Kris Mayes, the Democratic candidate for attorney general, has advanced that theory and promised not to enforce the law if elected.
"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,'' Johnson wrote.