PHOENIX (AP) — An Arizona attorney on Friday urged a judge to allow the state to enact a near-total abortion ban under a law that was blocked for nearly 50 years by a now-overturned U.S. Supreme Court decision.
Assistant Attorney General Beau Roysden said the judge’s role is simple: Now that the Supreme Court has overturned Roe v. Wade, the 1973 ruling that legalized abortion, Pima County Superior Court Judge Kelly Johnson must lift the injunction blocking the law.
Planned Parenthood and its Arizona affiliate argued that the judge should allow the law to apply only to people who are not doctors so that other abortion restrictions enacted by the Legislature after Roe remain valid.
But Roysden said the laws were enacted because the Supreme Court said the state must recognize a constitutional right to abortion.
“These laws were intended to regulate and restrict abortion within the powers that the legislature possessed,” Roysden told the judge. “They never intended… to legislate the right to abortion.”
Planned Parenthood advocate Sarah McDougal argued that the right way to deal with controversial laws is to limit the old one.
Failing to do so, she told Johnson, “would turn all statutory interpretation on its head and give him an undemocratic windfall by allowing the oldest abortion law on Arizona’s books to resurrect and somehow overtake all other abortion legislation.” .
Planned Parenthood said many laws restricting and regulating abortion would be rendered meaningless if the court allowed the old law to stand without restrictions. Just this year, the Legislature passed legislation signed by Republican Gov. Doug Ducey to criminalize abortions after 15 weeks of pregnancy. It goes into effect on September 24, and Ducey claims the new law he signed takes precedence over the law that was in place before the state was created.
Roysden, however, pointed out that the 15-week law specifically says it does not create a right to abortion and means that pre-state law is unenforceable.
Johnson said she would consider the arguments and issue a ruling after Sept. 20, a date determined by the procedural issue.
The state’s near-total abortion ban was in place decades before Arizona became a state in 1912, with the only exception being when the patient’s life is in danger.
The Pima County District Attorney’s Office supports Planned Parenthood, and Vice President for Civil Affairs Samuel Brown told Johnson that Arizonans need to know what laws will be enforced, and that’s not the case right now.
“Currently, there are three different definitions that indicate the legalization of abortion in Arizona. If and when that ban is lifted, there will be a fourth determination,” Brown said. “Sept. 24 will be the fifth.”
The case for the so-called personhood law began in 1971, when the Tucson branch of Planned Parenthood, several doctors and a woman seeking an abortion sued to overturn the rule. The following year, a Pima County judge ruled that a fetus has no constitutionally protected rights and that the law banning abortions also violates the rights of doctors to practice medicine as they see fit.
The Arizona Court of Appeals overturned that decision, completely rejecting the lower court’s argument that the abortion ban was unconstitutional and saying it could be enforced.
“Appellees’ challenges to the abortion statutes are exclusively within the domain of the Legislature, and any issues relating to abortion must be decided by that body,” the appeals court said in its ruling. “We can only reiterate that we are not a super-legislature.”
Less than three weeks later, the US Supreme Court ruled in Roe, and an appeals court overturned its earlier decision. Then the law was blocked.
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