An Arizona judge revived a ban on abortion that dates back to the mid-19th century, lifting a decades-old requirement that means the procedure is effectively illegal in the state at all times except when the life of ‘a pregnant person is at risk.
The ruling by Pima County Superior Court Judge Kellie Johnson was released Friday, a day before a law restricting abortions after 15 weeks of pregnancy took effect. Conflicting restrictions on abortion had created confusion, with state Attorney General Mark Brnovich (R) pushing to enforce tougher bans and Gov. Doug Ducey (R) previously insisting the 15-week ban was the law of the land
Johnson cited the U.S. Supreme Court’s overturning decision in June Roe v. Wadewhich established a fundamental right to abortion, as justification for the lifting of the precautionary measure. Roe Johnson ruled that it had been the basis of the 1973 court order that prevented the abortion ban from being implemented. And because the nation’s highest court had returned rulings on the procedure to Congress and the states, that measure can also be overturned, he wrote.
Arizona law threatens abortion providers with two to five years in prison. It originated from an 1864 law and has no exceptions for victims of rape or incest. Some states did not update the laws on their books afterward Roe was decided in 1973, and the overturning of that decision has caused confusion from Michigan to West Virginia over whether those laws still apply.
Johnson indicated that the previous law, which was updated and codified in 1901, replaces 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.'” , he wrote.
Abortion is prohibited in these states. See where the laws have changed.
Ducey’s office did not immediately respond to a request for comment Friday afternoon. Brnovich thanked Johnson on Twitter, saying 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 “Arizonas back almost 150 years.” The reproductive health organization, which may appeal the ruling, also said it would “never back down.”
Democratic gubernatorial candidate Katie Hobbs said in a statement that she was “mourning” the decision and vowed to veto the anti-abortion legislation if elected.
Johnson’s ruling means the old abortion ban is “no longer unenforceable” and Brnovich’s position as the state’s police chief “opens the door to prosecutions under this law,” said Kaiponanea Matsumura, professor of family law at Loyola Marymount University who previously taught in Arizona.
Barbara Atwood, professor emeritus of law at the University of Arizona, predicted more legal and legislative disputes over abortion in Arizona.
The 1901 law “directly conflicts with many laws governing abortion in Arizona enacted since 1973,” he said, including those that allow the procedure in emergencies such as pregnancies that may result in the loss of major organ function for pregnant women and other pregnant people.
“It’s an unworkable situation,” he said.