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Arizona attorney general argues 1901 law banning nearly all abortions is common-sense law

Planned Parenthood argued the 1901 law should be modernized with the law just passed by the Arizona Legislature.

TUCSON, Ariz. (CN) — After hearing arguments Friday, a Pima County Superior Court judge must decide if she will reverse a 50-year-old injunction on a 1901 law that had banned nearly all abortions in Arizona.

With two conflicting abortion laws in its books, the Grand Canyon State exists in a legal gray zone. One is a near-total ban codified in 1901 while Arizona was still a territory. The second bill, signed only this year and set to take effect in September, bars the procedure after 15 weeks except in cases where it would save the mother's life.

Arizona Attorney General Mark Brnovich is seeking relief as part of a 1971 lawsuit filed 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 pre-statehood abortion law in 1973 but reversed its ruling following the Supreme Court's landmark Roe v. Wade decision.

Solicitor General Beau Roysden argued Friday in Pima County Superior Court that, since the Supreme Court vacated Roe v. Wade, the court should uphold the state appellate court’s previous decision.

"Our position is that the court should not check its common sense at the door," he said. "It's very obvious what happened. Plaintiffs brought a challenge to this longstanding law in 1971. It went up to the court of appeals right on the eve of Roe. The court of appeals issued a very well-reasoned decision, which rejected that challenge and upheld the constitutionality of the predecessor statute. Ten days later, the Supreme Court issued Roe v. Wade, the Arizona Court of Appeals said we are bound by Roe."

Sarah MacDougall, an attorney for Planned Parenthood, argued the proposed motion is absurd and encouraged the court to harmonize the state Legislature's intent as evident with the 15-week law.

"This proposed reading implicitly repeals decades of Arizona law and creates absurd results," she said. "This court is duty bound to avoid such interpretations when harmonizing statutes dealing with the same subject. The absurd results of the AG's reading would include negating the 15-week law's explicitly stated intent to allow for abortions through 15 weeks."

Roysden dismissed claims that the 15-week abortion law should be taken as intent, citing the law being created with respect to Roe’s federally created abortion right.

“Those laws were passed by the legislature because the Supreme Court said you are required to recognize a constitutional right to abortion,” he said. “Those laws were intended to regulate and limit abortion within the power the legislature had. They were never intended, and there's nothing in their text that supports the conclusion they are intended to statutorily create a right to abortion.”

According to the motion from the attorney general's office, the territorial-era law, if reintroduced, will make it a crime for a person to provide a medical drug or use a procedure to achieve a miscarriage, unless it will save the mother's life.

Brittany Fonteno, chief executive officer of Planned Parenthood of Arizona, said during a press conference Thursday with Secretary of Health and Human Services Xavier Becerra that her organization and the state are in a crisis.

"We have been living in a state of crisis and confusion when it comes to our fundamental rights. Our bodies, our lives and our future," she said. "For nearly two months, Arizonans haven't known what their rights are, and our providers have been experiencing a really chilling effect based upon our elected officials declining to share what the legal status of abortion is, which we know is an essential medical procedure. Attorney General Brnovich and other anti-abortion politicians have purposefully sewn chaos and confusion."

Judge Kellie Johnson said she would issue a ruling on Sept. 20.

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