Updated Sep 23, 2022 - Politics & Policy

Arizona judge allows pre-statehood abortion ban to take effect

Kent Nishimura / Los Angeles Times via Getty Images

A Pima County judge ruled on Friday that Arizona's pre-statehood ban on most abortions will go into effect following the U.S. Supreme Court's decision that overturned Roe v. Wade.

Driving the news: Judge Kellie Johnson ruled that years of subsequent abortion restrictions that are less lenient than the territorial-era ban don't negate it.

  • Attorney General Mark Brnovich urged Johnson to reinstate the law that was enjoined in 1973 in response to Roe.
  • Planned Parenthood Arizona argued that other, more permissive laws passed since then should go into effect instead of the pre-Roe ban.

Why it matters: A law banning all abortions other than those necessary to save the life of the mother is now effective.

State of play: Lawmakers this year passed a ban on abortions after 15 weeks of pregnancy, which was supposed to take effect on Saturday.

Yes, but: The legislation emphasized that it doesn't repeal the pre-Roe prohibition.

Of note: Lawmakers in 2021 repealed a portion of the law that made it a felony for a woman to seek or obtain an abortion, leaving only the portion that criminalized people who perform abortions.

What they're saying: Brnovich announced the ruling on Twitter, applauding the ruling.

  • "We applaud the court for upholding the will of the legislature and providing clarity and uniformity on this important issue. I have and will continue to protect the most vulnerable Arizonans," he tweeted.

Planned Parenthood Arizona decried the ruling, which CEO Brittany Fonteno said will "strip Arizonans from their right to live under a rule of law that respects our bodily autonomy and reproductive decisions."

  • "Today’s ruling by the Pima county superior court has the practical and deplorable result of sending Arizonans back nearly 150 years. No archaic law should dictate our reproductive freedom and how we live our lives today," Fonteno said.

Meanwhile: CJ Karamargin, a spokesperson for Gov. Doug Ducey, insisted that the 15-week ban he signed earlier this year will still be the law of the land when new legislation goes into effect on Saturday.

  • "Governor Ducey was proud to sign SB1164, which goes into effect tomorrow. Arizona remains one of the most pro-life states in the country," Karamargin told Axios.

Yes, but: The judge explicitly wrote in her ruling that it would be improper to "harmonize laws not in existence" when at the time of the original injunction.

  • Johnson noted that the legislature has repeatedly emphasized that abortion laws enacted after Roe did not create a right to an abortion in Arizona.
  • She pointed out that language in the 15-week ban explicitly states that the law did not repeal the pre-Roe prohibition.
  • Cathy Herrod, president of the Center for Arizona Policy, which advocated for the 15-week ban, wrote on Twitter that abortion law is now back to its pre-Roe status from 1973 – illegal except when needed to save the life of the mother.

Reality check: Planned Parenthood Arizona will immediately pause all abortion services in the state, and will not be performing abortions within the 15-week window, spokesperson Andrew Feldman told Axios.

  • Planned Parenthood Arizona's attorneys are evaluating how the pre-Roe ban, 15-week ban and other abortion laws will interact with each other in the wake of the injunction being lifted.
  • Fonteno said the judge's decision to lift the injunction without clarifying how other abortion restrictions will interact withe territorial-era ban "created chaos and confusion and will deny thousands of Arizonans control over their reproductive lives and their ability to have a safe, legal abortion."

What's next: Johnson noted in her ruling that there are likely other legal questions left to address regarding the future of abortion in the state.

The bottom line: Planned Parenthood didn't say whether it will appeal the ruling, but Fonteno indicated that the legal battle isn't over, saying in a press release that "this is not the end of the fight."

Go deeper