Just after the United States Supreme Court ruled earlier in 2022 that Casey and Roe were unconstitutional, returning the question of the legality of abortion to the states, we reported that about 13 states had laws on the books that would be “triggered” by the ruling. It was prescient of my colleague Streiff to write about one of those laws:
Arizona has a 1901 law on the books criminalizing abortion. It also has a 2022 law forbidding abortion after 15 weeks which goes into effect in September. However, that law states that it does not repeal the 1901 law or any other law regulating abortion. Attorney General Mark Brnovich has opined that the 1901 law is in effect, but court action is needed to remove injunctions already in place.
He also shared this tweet from AG Brnovich’s office in July, which stated it was their conclusion that the earlier law would “not be repealed” in September with the 2022 law, and they were “asking the court” to lift the injunction on it that the legislature put in place with the SCOTUS ruling on Roe in 1973.
In the past week, both the legislature’s new 15-week ban, signed into law by Republican Governor Doug Ducey, has gone into effect, and a federal court judge has ruled to lift the injunction. But Arizona law on abortion remains in limbo, according to Brnovich’s office, writing in a letter to Ducey’s office that comments from Gov. Ducey are only aiding Planned Parenthood of Arizona’s legal battle against the stricter law that bans abortion, except in situations where the life of the mother is at risk.
Solicitor General Beau Roysden is asking for the governor to “call a special session of the Arizona Legislature so that legislators may have an opportunity to give additional clarity about our abortion laws based on feedback they may be receiving from their constituents.”
As the Arizona Mirror reports:
Ducey has repeatedly stated that a 15-week abortion ban he signed this year supersedes a total ban written in 1864.
On Wednesday, Brnovich’s office said Ducey’s statements about the 15-week ban being the state’s chief abortion restriction are creating confusion and giving legal ammunition to opponents of the total ban — and it joined the call for Ducey to call a special session to resolve the confusion.
“(We) request that you call a special session of the Arizona Legislature so that legislators may have an opportunity to give additional clarity about our abortion laws based on feedback they may be receiving from their constituents,” Solicitor General Beau Roysden wrote in a letter sent to the Anni Foster, Ducey’s top attorney.
Currently, the stances of the attorney general and governor’s offices are at odds. Roysden writes that assertions from Ducey that the 15-week ban should take precedence over the 1864 law are being used against the state in court by Planned Parenthood of Arizona.
“It is the position of our office that after Friday’s ruling from the Superior Court, (the 1864 ban) is now in effect statewide. However, the Governor’s office has not taken a clear legal position on the current state of the law in Arizona, and comments from the Governor are being cited in court to undermine the State’s defense of (the 1864 ban),” he wrote.
Roysden noted that language in the 15-week ban expressly states that it doesn’t create a right to abortion or repeal the 1864 law — a provision the judge cited when reinstating the territorial-era law — and requested that the governor’s office issue a brief outlining Ducey’s exact legal position..
Hopefully, some clarity can be provided for the citizens of the Grand Canyon state on this crucial issue soon.