Arizona AG Brnovich files motion to fully reinstate abortion ban
PHOENIX - Attorney General Mark Brnovich filed a motion on July 13 to fully reinstate Arizona's ban on abortions.
Brnovich filed the motion in Pima County, asking a court to lift a 50-year-old injunction that puts the state's total abortion ban on hold.
ARS 13-3603 has been on the books since at least 1901, when Arizona was a U.S. territory. The law has been blocked since shortly after the U.S. Supreme Court’s 1973 decision in Roe v. Wade.
"We believe this is the best and most accurate state of the law," Brnovich said in a statement. "We know this is an important issue to so many Arizonans, and our hope is that the court will provide clarity and uniformity for our state."
Brnovich, who is running for U.S. Senate, announced late last month that the old abortion ban was enforceable and that he would seek to have the injunction lifted.
MORE: Abortion now banned in most cases in Arizona, Attorney General says: Here's what to know about ARS 13-3603
Providers across the state stopped abortions after the Supreme Court’s June 24 opinion, saying it was too risky to move ahead with the old ban still on the books and with a 2021 law that grants all rights to pre-born children also in play.
On Monday, a federal judge in Phoenix blocked a 2021 state "personhood" law that gives all legal rights to unborn children and that abortion rights groups said put providers at risk of prosecution for a variety of crimes.
Abortion-rights supporters in Arizona failed to collect enough signatures by the July 7 deadline to ask voters to enshrine the right to abortion in the state constitution this November. Their last-minute effort was a longshot because they needed to collect nearly 360,000 valid signatures in just over seven weeks.
Abortion rights groups slammed Brnovich for moving to again allow enforcement of the pre-statehood ban.
"It is outrageous that Arizona’s Attorney General is trying to revive this zombie law that has long been blocked," Gail Deady, an attorney at the Center for Reproductive Rights, said in a statement. "Arizonans’ personal health decisions, lives, and futures should not be dictated by a century-old, draconian law."
Deady said that the high court’s decision to overturn Roe has caused "absolute chaos" in Arizona and other states with Republican Legislatures that have previously unenforceable abortion restrictions on the books. Numerous court battles are underway to try to block "trigger laws" designed to ban abortion if Roe fell or opposing so-called "zombie laws" like Arizona’s that predate Roe.
While Arizona Governor Doug Ducey signed a 15-week abortion ban into law in March 2022, the bill, known as SB 1164, explicitly states it does not overrule the state's old abortion ban.
In the attorney general’s court filing, Assistant Attorney General Beau Roysden III laid out the history of the injunction that blocked the old abortion law.
That case started in 1971, two years before Roe was handed down, when the Tucson affiliate of Planned Parenthood, several doctors and a woman who wanted an abortion sued to overturn the law. A trial judge in Pima County Superior Court ruled the next year that a fetus does not have constitutionally protected rights and that the law banning abortion also violated the doctors’ rights to practice medicine as they saw fit.
The Arizona Court of Appeals overturned that ruling, rejecting wholesale the lower court’s reasoning that the abortion ban was unconstitutional and saying it could be enforced.
"Appellees’ complaints against the abortion statutes are peculiarly within the field occupied by the Legislature and any problem concerning abortion should be solved by that body," the appeals court ruling said. "We can only reiterate that we are not a super-legislature."
Less than three weeks later, the U.S. Supreme Court ruled in Roe, and the appeals court reversed its earlier judgment. The law was then permanently blocked.
Roysden noted that the "Legislature, however, did not acquiesce in the declaration that these laws were unconstitutional but rather took affirmative steps to ensure their continuing validity in the event that Roe was overruled."
The Legislature reenacted the pre-statehood ban in 1977, and this year said it was still on the books when they passed the ban on abortions after 15 weeks. The intent was to ensure it would be enforceable if Roe v. Wade were overturned, according to Wednesday’s court filing.
The president and CEO of Planned Parenthood Arizona, Brittany Fonteno, said Brnovich’s action shows he is "out of touch" with the majority of Arizonans who support abortion rights. She said the group plans to fight his request in court. Fonteno noted that the Legislature over the past 50 years has passed numerous laws allowing doctors to perform abortions.
"As a result, we believe that providers should still be able to provide this essential health care to the thousands of Arizonans who need it annually," Fonteno said in a statement.
A date to hear Brnovich’s request has not yet been set.
The Associated Press (AP) contributed to this report.