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Arizona asks court to unblock 1901 law banning nearly all abortions

The law would prevent abortion in the instances of rape, said the state.

TUCSON, Ariz. (CN) — Arizona Attorney General Mark Brnovich filed a motion Wednesday to reverse a 50-year-old injunction halting a 1901 law that banned nearly all abortions in the state.

Arizona is currently in a legal gray zone with two conflicting abortion laws in its books. One is a near-total ban codified in 1901 while the state was still a territory, while a second, recently signed bill, bars the procedure after 15 weeks except in cases where it would save the mother’s life. The latter does not take effect until September.

After the U.S. Supreme Court overturned Roe v. Wade in June as part of Dobbs v. Jackson Women’s Health Organization, Brnovich vowed to enforce the pre-Roe law, claiming it supersedes the 15-week ban.

“Our office has concluded the Arizona Legislature has made its intentions clear regarding abortion laws,” he tweeted in June. “ARS 13-3603 is back in effect and will not be repealed in 90 days by SB1164. We will soon be asking the court to vacate the injunction which was put in place following Roe v. Wade in light of the Dobbs decision earlier this month.”

Brnovich seeks relief as part of a 1971 lawsuit filed in Pima County Superior Court challenging the state ban by the Planned Parenthood Center of Tucson, a group of doctors and an unnamed woman who sought an abortion.

A state appellate court upheld the law in 1973 but reversed its ruling following the Supreme Court’s landmark Roe v. Wade decision issued soon after.

“We believe this is the best and most accurate state of the law,” Brnovich said in a statement announcing the filing. “We know this is an important issue to so many Arizonans, and our hope is that the court will provide clarity and uniformity for our state.”

According to the motion, the territorial-era law, if reintroduced, will make it a crime for a person to provide “any medicine, drugs or substance” or use “any instrument or other means whatever, with intent thereby to procure the miscarriage” of a “pregnant woman,” unless “necessary to save her life.”

The filing states the 2022 law outlawing abortions after 15 weeks contains a provision stating the 1901 law is still in effect.

“And this year, even while it enacted a 15-week gestational age limitation on abortions prior to the issuance of the Dobbs opinion (when it was uncertain how the Supreme Court would rule), the Legislature also expressly included in the session law that the 15-week gestational age limitation does not ‘[r]epeal, by implication or otherwise, section 13-3603, Arizona Revised Statutes, or any other applicable state law regulating or restricting abortion,’” the motion asserts.

In requesting relief from the 1973 injunction, the filing claims the old law is the only valid legal consideration on the state's books.

“[Dobbs,] therefore, clearly represents a significant change in the law affecting substantial rights of the State (acting through the enjoined prosecutors), as well as the unborn,” the motion says.

Brnovich’s office confirmed in the filing that victims of rape would not be afforded abortive care under the territorial law, as previously challenged in lawsuits against the state. He referenced the Dobbs decision, which omits abortions in instances of rape, as constitutional. 

“The overbreadth argument was based on the lack of exceptions for rape and ‘defective fetuses,’” the motion states. “The Mississippi abortion law in Dobbs did not contain an exception for rape, and yet the U.S. Supreme Court upheld the law as constitutional.”

The ACLU of Arizona denounced the filing Wednesday.

“Abortion is essential healthcare that thousands of Arizonans rely on every year,” said executive director Jennifer Allen in a statement. “Asking the courts to reinstate this cruel century-old ban is completely out of touch with the needs of people who can become pregnant and their families."

Brnovich, who is running for U.S. Senate, said he was acting on behalf of Arizonans.

“We believe this is the best and most accurate state of the law,” said Brnovich in a statement. “We know this is an important issue to so many Arizonans, and our hope is that the court will provide clarity and uniformity for our state.”

Tuesday, a federal judge granted an injunction blocking the prospect of criminal prosecutions of abortion providers under a 2021 Arizona law that grants “personhood rights” to fetuses. The judge found the related law to be vague and in conflict with the existing state legal definition of “person.”

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