An Arizona Superior Court judge could decide as early as Tuesday whether a 1901 ban on nearly all abortions in that state can be enforced, a court case that has confused current Arizona law and could energize women voters. so that they appear in greater numbers. numbers in the hotly contested U.S. Senate and state gubernatorial races.
The case, which is likely to be appealed regardless of the decision, addresses the question of how restrictive abortion law should be in Arizona, a pivotal state that President Joe Biden won by less than 11,000 votes. It’s a controversial topic that has divided Republicans in Arizona and reflects a nationwide debate sparked by the U.S. Supreme Court’s overturning of Roe v. Wade in late June, with many GOP-led states adopting increasingly restrictive measures that risk alienating moderate voters.
Earlier this year, ahead of that U.S. Supreme Court ruling, the Arizona Legislature passed a 15-week abortion-banning law, which was signed by Republican Gov. Doug Ducey and was set to go into effect. September 24. bill stating that the new legislation would not override the 1901 law – which was passed before Arizona became a state and dates back to 1864 – which prohibits abortion in all cases except when “it is necessary to save (the mother’s) life.” This earlier law carries a prison sentence of two to five years for abortion providers.
The earlier law was blocked by a Pima County Superior Court court injunction after the Roe decision in 1973. But after the high court overturned Roe in June, Republican Arizona Attorney General Mark Brnovich announced that he would seek to enforce the pre-state abortion ban. .
He asked the Pima County Superior Court to lift the injunction, arguing that the court needed to bring “clarity and uniformity to our state.” Brnovich’s stance, which he took as he unsuccessfully contested the GOP nod for the U.S. Senate, conflicts with that of the Republican governor, who argued the 15-week ban should have precedence.
Arizona’s confusing legal landscape unfolded against the backdrop of a shifting national political landscape ahead of the November midterms. While historical trends and the nation’s sour mood on inflation had initially appeared to favor Republicans in their quest to take control of the U.S. House and Senate in November, the Supreme Court’s decision on the Abortion energized women voters across the country—a momentum that led to the surprising victory of abortion rights supporters in Kansas and better-than-expected performance by Democrats in special elections for the United States House. United since the Dobbs ruling.
Political consultants from both parties in Arizona acknowledge that the consternation over what the law will be in the state has injected uncertainty into marquee races statewide. Republicans, who need a net gain of a single seat to topple the Senate, are trying to unseat Democratic Sen. Mark Kelly as he runs for a full six-year term. And Democrats are trying to overthrow the governor’s mansion, currently held by Ducey for a limited time.
Even a slightly higher turnout for Democrats could be essential in races that may be decided on the sidelines. A recent Wall Street Journal poll found that 57% of voters opposed a 15-week ban with an exception just for mother’s health.
In the Arizona gubernatorial race, Democrat Katie Hobbs tried to portray GOP opponent Kari Lake as “extreme” on abortion. Lake has repeatedly said she is opposed to the procedure and at a press conference in August she said she will “enforce the applicable laws.” But she did not specify which laws she was talking about. “If people don’t like the laws on the books, then they need to elect representatives who will change the laws. I’m running for governor, not for God. So I can’t write the laws,” she said.
Her campaign did not respond to CNN’s request for clarification on her view of the pre-state law or a question about whether she thinks Arizona’s new 15-week abortion ban is going enough. far. Hobbs said she would veto any legislation that “undermines a woman’s right to her own body” and she called for the repeal of the pre-state abortion ban before that the Supreme Court overturns Roe v. Wade.
Lake and GOP Senate candidate Blake Masters, who is challenging Kelly, have argued that their Democratic opponents have taken positions too far removed from the mainstream in favor of abortion rights.
But Masters removed language from his campaign website expressing support for a “federal personality law” and other conservative anti-abortion positions after winning the GOP nomination last month. Her campaign told CNN that Masters supports South Carolina Sen. Lindsey Graham’s proposal to ban abortion at 15 weeks, which would include exceptions to protect the life of the mother and in cases of rape or incest. But the Masters campaign did not respond to questions about its stance on the pre-state law or the trial to enforce it.
Abortion rights advocate Kelly said in a recent interview with KTAR News that there may be restrictions “in late pregnancy” but that “we just need to make sure women can get the health care they need if they face serious problems”. terms.”
Planned Parenthood Arizona initially suspended abortion services following the High Court’s decision in Dobbs v. Jackson Women’s Health Organization in June, then resumed care. But he is now bracing for another potential stoppage if the judge decides the pre-state law can come back into effect.
The Planned Parenthood Federation of America fought Brnovich’s decision in Pima County Superior Court — the court that dealt with the 1973 injunction — where it argued in a legal filing that “providers of the ‘Arizona were left to deal with inconsistent statements by elected officials on the status of the law’ and which Brnovich pushed to enforce pre-state law while ‘blatantly ignoring what Arizona’s statutory code includes today’ dozens of laws that clearly allow doctors to perform abortions.
Lawyers for Planned Parenthood argued that the court had a duty “to harmonize all of Arizona’s statutes as they exist today.” In the post-Dobbs era, the group argued that pre-state law could “be enforceable in some respects,” but that it should not apply to abortions performed by licensed physicians — and rather that the The ban should apply to anyone other than a licensed physician. physician attempting to provide abortion services.
“There are numerous laws that the state legislature has passed over the past 50 years that clearly regulate abortion as a safe and legal medical procedure that can be performed by a licensed physician,” said Brittany Fonteno, president. and CEO of Planned Parenthood Arizona. “The Attorney General cannot choose one particular law and ignore all the other laws that are on the books.”
While the group does not support nationwide abortion restrictions, Fonteno said its legal strategy in Arizona was guided by recognition of what was “doable” in the post-Dobbs era given the Republican control of the state house in Arizona and what she described as “a state court system that has been piled high with anti-abortion judges.
Brnovich’s office did not respond to multiple requests from CNN to discuss his arguments in the case and what the legal landscape would look like if the judge allowed the pre-state ban to go into effect within days. before Arizona’s 15-week abortion ban became law.