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Planned Parenthood asks judge to delay Arizona abortion law enforcement

Planned Parenthood Arizona is asking a Pima County judge to delay enactment of her ruling that most abortions in Arizona are illegal.

In legal papers filed Monday, the organization told Judge Kellie Johnson her decision Friday raises “serious questions’’ about the interaction between the territorial-era law banning abortions except to save the life of the mother, and the measure approved earlier this year allowing abortions through the 15th week of pregnancy.

These need to be examined by an appellate court, said Planned Parenthood attorney Andrew Gaona.

Republican Attorney General Mark Brnovich will fight the move.

His press aide Katie Conner said the whole purpose of the Friday ruling was to provide clarity, and she said Johnson provided that by declaring the territorial-era law to be in effect.

“If Arizonans disagree with the law, they should contact their legislators or the governor,’’ Conner said.

But Gaona said allowing the old law to suddenly be enforced again, 49 years after it was found unconstitutional, will harm not only Planned Parenthood but also its patients “and the general public.’’

“... There will be no harm to the state if harm to its citizens is avoided while the case proceeds on appeal,’’ he told Johnson.

That argument is legally crucial.

In Arizona, judges must weigh certain factors when deciding whether to delay implementation of their own rulings. Those specifically include whether there will be “irreparable harm’’ if the stay is not granted, and whether the harm to the party making the request if the stay is not granted outweighs the harm to anyone opposed.

Hanging in the balance is the Arizona law tracing its roots back to 1864 that makes abortion a crime except to save the life of the mother. The law sets punishment at between two and five years in state prison.

Its enforcement was stopped in 1973 by the state Court of Appeals after the U.S. Supreme Court issued the historic ruling in Roe v. Wade finding a constitutional right of women to terminate a pregnancy.

All that changed in June when the high court reversed Roe, a move that left it to each state to decide its own laws.

Brnovich then went to court to have the 1973 injunction against the 1864 ban dissolved.

Planned Parenthood objected, pointing out that lawmakers enacted various rules for legal abortions in the 49-year interim.

Those include the 15-week ban, approved earlier this year by the Republican-controlled Legislature, which took effect Saturday, according to GOP Gov. Doug Ducey.

Johnson sided with the attorney general, specifically pointing out the pre-Roe law was never repealed and that SB 1164, the 15-week ban, specifically said it was not overriding that law.

Gaona, in asking the judge to stay her ruling, said it isn’t that simple.

“Indeed, both parties submitted multiple rounds of briefing on the complex issues presented by AG Brnovich,’’ he said. “And that makes sense, given the complicated procedural posture, the intricate issues of statutory interpretation, and the extraordinary unique historical and social circumstances surrounding the AG’s request.’’

Then there’s the question of harm.

“The health and safety of Arizonans will be compromised if (the pre-Roe law) remains enforceable against physicians who perform abortions while Planned Parenthood Arizona appeals this court’s decision,’’ Gaona said.

He also pointed out it is not just Planned Parenthood raising questions about conflicting laws.

Ducey issued a statement saying that, as far as he was concerned, the 15-week ban he signed earlier this year is now in effect. In fact, he told Capitol Media Services earlier this year he believes the newer law supersedes what already was on the books.

Gaona also pointed out that while both laws allow abortions to save the life of the mother, there are some key differences, including a 24-hour waiting period under certain circumstances.

“Confusion on the scope of these exceptions seemingly at odds with one another could lead to doctors hesitating to treat patients in dire medical situations,’’ he told Johnson. “The absence of a stay will deprive many pregnant Arizonans of health care the require for an indeterminate period of time, while this case makes its way through the appellate process.’’

Gaona is seeking quick action. He wants the judge to order Brnovich to respond to his request by the end of the day Tuesday and allow him to reply to any arguments the following day.

Howard Fischer is a veteran journalist who has been reporting since 1970 and covering state politics and the Legislature since 1982. Follow him on Twitter at @azcapmedia or email

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For Star subscribers: A court order barring Attorney General Mark Brnovich from trying to enforce a near ban on abortions for at least 45 days is part of a deal between his office and attorneys for the Arizona Medical Association.

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