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Arizona Judge Revives State’s 19th Century Near-Total Ban on Abortion

September 26, 2022 by Dan McCue
Dr. Jill Gibson, the medical director for Planned Parenthood Arizona, at a clinic in Tempe that stopped performing abortions after this year’s Supreme Court ruling. (Matt York/Associated Press)

TUCSON, Ariz. — A near-total ban on abortion written nearly 50 years before Arizona became the nation’s 48th state must be enforced as a result of the U.S. Supreme Court’s decision to overturn Roe v. Wade, a state circuit court judge ruled on Friday.

The ruling by Pima County Superior Court Judge Kellie Johnson, lifted an injunction that had been in place since the high court handed down its decision in Roe in 1973.

That decision, which held women had a constitutional right to an abortion, was overturned this past summer by the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization.

Judge Johnson’s decision also came one day before a ban on abortions after the 15th week of pregnancy, passed by the state Legislature earlier this year, was to have gone into effect.

“The court finds that because the legal basis for the judgment entered in 1973 has now been overruled, it must vacate the judgment in its entirety,” Johnson wrote, adding, “The court finds an attempt to reconcile 50 years of legislative activity procedurally improper.”

The ruling was assailed by women’s health advocates and the White House.

“No archaic law should dictate our reproductive freedom,” said Brittany Fonteno, the president and chief executive of Planned Parenthood Arizona, in a written statement immediately after the judge’s ruling.

On its Twitter page the organization said its lawyers were “evaluating next steps in the case,” and that it would update “our patients and community as soon as we have more information.”

In a statement issued Saturday, White House Press Secretary Karine Jean-Pierre said Johnson’s ruling “is dangerous and will set Arizona women back more than a century — to a time before Arizona was even a state. 

“If this decision stands, health care providers would face imprisonment of up to five years for fulfilling their duty of care; survivors of rape and incest would be forced to bear the children of their assaulters; and women with medical conditions would face dire health risks,” she continued.

“While we await next steps on any implementation of the law, the potential consequences of this ruling are catastrophic, dangerous and unacceptable. Make no mistake: This backwards decision exemplifies the disturbing trend across the country of Republican officials at the local and national level dead-set on stripping women of their rights, including through Sen. Lindsay Graham’s, R-S.C., proposed national abortion ban. 

“The president and vice president will continue to push Congress to codify Roe to protect women’s access to abortion and health care,” Jean-Pierre added.

In her ruling, Johnson rejected Planned Parenthood’s request that the old law, dating from 1864, and the state’s recently passed legislation be “harmonized” to allow some abortions to be performed by licensed practitioners.

In addition to completely banning abortions the older law also mandates a two- to five-year prison sentence for anyone who helps a woman get an abortion.

Arizona’s Republican governor, Doug Ducey, had suggested the new law, which he signed in March, ahead of the Supreme Court ruling in Dobbs, should supersede the older legislation, but that idea also failed to fly with Johnson.

The total ban also had the support of Arizona Attorney General Mark Brnovich, also a Republican, who filed the motion to vacate the injunction from 1973.

“We applaud the court for upholding the will of the Legislature and providing clarity and uniformity on this important issue,” Brnovich said in a written statement. “I have and will continue to protect the most vulnerable Arizonans.”

Dan can be reached at dan@thewellnews.com and at https://twitter.com/DanMcCue.

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