Judge rejects Planned Parenthood request to pause Arizona abortion ban

Stacey Barchenger
Arizona Republic

A territorial-era law that bans abortions except to save the life of a mother will remain in effect, a Pima County judge said Friday, dashing hopes of abortion rights advocates who sought to put the law on hold while they challenge it in court.

Planned Parenthood Arizona this week asked Superior Court Judge Kellie Johnson to put a hold on enforcement of the 1864 law, which prescribes prison terms for abortion providers. The request came three days after Johnson lifted an injunction that had left the 1864 law dormant for nearly five decades.

The latest order will do little to resolve widespread confusion over abortion law in Arizona, which began in June when the U.S. Supreme Court overturned precedent set in its Roe v. Wade decision, which legalized abortion up until a fetus could survive outside of the womb.

Allowing the 1864 law to take effect, as Johnson has now done via two court orders, creates more pressure to resolve the conflicting laws on the books amid a midterm election year in which abortion is a top issue for voters.

Earlier this year, Arizona lawmakers and Republican Gov. Doug Ducey enacted a law banning abortions after 15 weeks. Ducey has said that law should prevail.

This week, Republican Attorney General Mark Brnovich and advocates for abortion rights found themselves in a unique position of agreement on at least one thing: calling on Ducey to convene a special session of the Legislature to determine which law prevails. That special session is unlikely — Ducey has not signaled any support for the issue, and with lawmakers facing election in shortly over a month, drawing them away from campaigns would likely be an unwelcome idea.

Brnovich also asked Ducey to clarify his stance through a legal filing.

C.J. Karamargin, Ducey's spokesman, had no comment on the latest ruling and said Ducey's office was still reviewing Brnovich's request to provide clarity on the conflicting laws.

Brnovich, whose office fought to restore the 1864 law and opposed Planned Parenthood's latest effort to put it on hold, did not immediately respond to a request for comment.

Planned Parenthood responds

Planned Parenthood, the abortion rights advocacy giant that provides services in Arizona, criticized the uncertainty created by the court rulings and conflicting views of elected officials.

"It is impermissible that Arizonans are waking up each morning to their elected officials making conflicting statements about which laws are in effect or claiming that they do not know, and yet the court has refused to provide any clarity or relief," Brittany Fonteno, president and CEO of Planned Parenthood Arizona, said in a statement Friday.

Fonteno said uncertainty about abortion rights in the state has "been devastating for our physicians and staff who have been forced to notify patients that they can no longer care for them, and traumatic for our patients who have been forced to flee the state to receive basic health care."

But Johnson, who was appointed to the Pima County bench by Ducey in 2017, said in her ruling it was not her duty to reconcile the laws, though she noted that it was "certainly an issue that must be addressed."

Rules dictating court procedure prevented her from weighing in, Johnson wrote, adding that "interpretation and interplay of Arizona's abortion statutes should be addressed in a new lawsuit."

Reach reporter Stacey Barchenger at or 480-416-5669. Follow her on Twitter @sbarchenger.

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