By Dave Andrusko
An engaged appeals court panel heard arguments Wednesday from the Arizona Attorney General Office and Planned Parenthood “on the validity and application of a near-total ban [on abortion]from 1864 and whether it can coexist with a 15-week ban passed this year,” KNAU reported.
“In a lively, nearly 90-minute debate, the three-judge panel of the court’s southern Arizona division challenged the lawyers on how the pre-statehood law could be made to gel with a new law limiting abortions and other statutes on the books, or if modifying its meaning would strip the Legislature of some of its power,” according to Ray Stern.
In October, a three judge panel of the Arizona Court of Appeals agreed with Planned Parenthood and ruled that Pima County Superior Court Judge Kellie Johnson should not have lifted the injunction that had prevented the state from enforcing an 1864 law that outlawed most abortions.
Judge Johnson ruled that the plaintiff were not likely to win on appeal. Attorneys with Attorney General Mark Brnovich’s office told the judge that “since the U.S. Supreme Court’s June 24 decision [overturning Roe v. Wade] said women do not have a constitutional right to obtain an abortion, there was no legal reason to block the old law.”
The appeals court was not persuaded. In a brief order, Presiding Judge Peter J. Eckerstrom said Planned Parenthood and its Arizona affiliate ”had shown they are likely to prevail on an appeal of a decision by the judge in Tucson to allow enforcement of the old law.” As a result, abortions can take place again in Arizona.
The 1864 ban on abortions was “enforced vigorously in Arizona until 1973, even as other states adopted more liberal policies, but the Roe v. Wade decision that year resulted in an injunction in Pima County Superior Court that put the law on ice for 49 years,” Stern reported.
The legislature, anticipating that Roe v. Wade would fall, passed the 15-week abortion ban, Stern reported.
The law would not have been constitutional under Roe v. Wade, which allowed abortions under state guidelines in the second trimester. But lawmakers included a provision that expressly states the new law does not repeal the 1864 law “or any other applicable state law regulating or restricting abortion.”
Judge Eckerstrom said “Arizona courts have a responsibility to attempt to harmonize all of this state’s relevant statutes.” The judge was alluding to “a host of laws restricting abortions passed since the original injunction was put in place following the U.S. Supreme Court’s 1973 decision in Roe v. Wade that said women have a constitutional right to an abortion,” The Associated Press’s Bob Christie explained.
“Those laws include a new one blocking abortions after 15 weeks of pregnancy that took effect last month.”
According to reporter Howard Fischer, “Attorneys from Planned Parenthood Arizona are arguing that can be done [“harmonizing”] by reading the new law as applying to doctors, while keeping the territorial-era law only for those who are not medical professionals.”
The court did not specify when it would reach a conclusion, but it is expected in several weeks.