Planned Parenthood asks AZ Supreme Court to block the 1864 abortion ban until repeal takes effect

Photo by Jerod MacDonald-Evoy | Arizona Mirror

Just after the Arizona Senate voted to repeal a territorial-era abortion ban on Wednesday, Planned Parenthood of Arizona filed a motion asking the state Supreme Court to issue a stay, delaying the implementation of the ban until after the repeal takes effect. 

The near-total abortion ban was originally implemented in 1864 and then made unenforceable in 1973, when the U.S. Supreme Court gave women the right to abortion via Roe v. Wade

After the court voted to repeal Roe in June 2022, it became unclear whether the 1864 law would go into effect, or if a 15-week ban passed by Republicans just months earlier would supersede it. 

On April 9, the Arizona Supreme Court ruled that the 1864 law, which carries with it a 2 to 5 year prison sentence for doctors who perform an abortion for any other reason than saving a woman’s life, trumps that 2022 law. 

The ban won’t go into effect until June 27, at the earliest. But the repeal of the ban, which Democratic Gov. Katie Hobbs is expected to sign on Thursday, won’t take effect until 90 days after the end of the state’s legislative session. The legislative session doesn’t have a set end date, but typically the last business of the body is completing the state budget, with a deadline of June 30. 

But there’s no certainty that the session would end once a budget is done. Last year, the budget was completed in May, but the session dragged on until the end of July. 

In its motion on Wednesday, Planned Parenthood of Arizona asked the state Supreme Court to stay its final mandate on the 160-year-old ban until after the repeal takes effect, to avoid a temporary pause in the availability of abortions in the state between the implementation of law and its repeal. 

The state Supreme Court wrote on April 9 that its decision largely rested on deferral to the Legislature’s intent, citing its “unwavering and unqualified affirmative maintenance of a statutory ban on elective abortion since 1864.”

Planned Parenthood argued in its filing that, after the Senate’s vote Wednesday to repeal, the Legislature no longer maintains “unwavering” support for the ban, and that the high court should defer to that decision. 

“The Court’s April 9 ruling was both tragic and wrong, but it rested on trying to discern legislative intent,” Angela Florez, president and CEO of Planned Parenthood Arizona, said in a statement. “The Legislature has now spoken and clearly does not want the 1864 ban to be enforced. We hope the Court stays true to its word and respects this long-overdue legislative action, by quickly granting our motion to end the uncertainty over the future of abortion in Arizona.”

Arizona’s Supreme Court has already rejected a request from Democrats to reconsider its April 9 decision, and Democratic Attorney General Kris Mayes on Tuesday asked the justices to delay their final ruling by 90 more days, until her office decides whether to seek review by the U.S. Supreme Court. 

Planned Parenthood wrote in its motion that, while some prosecutors might voluntarily decide not to enforce the abortion ban, the threat of prosecution could have a chilling effect on the availability of the procedure. 

“The Court’s issuance of the mandate will eventually trigger a months-long blackout period during which a since-repealed nineteenth century near-total abortion ban will technically be enforceable,” Andy Gaona, an attorney for Planned Parenthood Arizona, wrote in the motion. “Health care providers will be understandably reluctant to provide abortion care for fear of current or future prosecution, and pregnant patients will be left distressed, confused, and without access to critical care.”

Mayes has already promised not to allow county attorneys to prosecute doctors for violating the abortion ban, and has also vowed that her office won’t prosecute anyone for defying it. 

“The political branches have now spoken in bipartisan fashion to reject a reality in which the Territorial Ban controls, and their voice demands this Court’s recognition and deference,” Gaona wrote. 

While a handful of Republicans sided with Democrats to repeal the ban, the vast majority of legislative Republicans voted against the measure, and some of them excoriated the members of their own party that voted to repeal. 

The repeal passed through the House on April 24, by a vote of 32-28, with Republican Reps. Matt Gress of Phoenix, Tim Dunn of Yuma and Justin Wilmeth of Phoenix siding with Democrats. 

The Senate on Wednesday voted 16-14 to repeal the ban, with Republican Sens. Shawnna Bolick of Phoenix and T.J. Shope of Coolidge voting alongside Democrats. 

“Apart from a weeklong period in 2022 between the trial court’s order and the court of appeals’ emergency stay order, abortion care has been continuously available in Arizona for over 50 years,” Gaona wrote. “Issuing the mandate now would needlessly disrupt that status quo for several months until the repeal goes into effect. That disruption, although temporary, would have grave consequences that will almost certainly result in additional litigation meant to obtain a ‘stop gap’ until the repeal takes effect.”

In its statement, Planned Parenthood promised to continue providing abortions to those who need them through 15 weeks of gestation “until the last possible legal moment.” 

In the November election, Arizona voters are expected to weigh in on a pro-abortion initiative that would enshrine the procedure as a right in the state Constitution.

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