PHOENIX — Pima County Attorney Laura Conover is siding with Planned Parenthood and against Attorney General Mark Brnovich in his bid to enforce a ban on virtually all abortions in Arizona.
And the outcome of that lawsuit could affect the rights of women statewide.
In new court filings, Samuel Brown, her chief civil deputy, acknowledged there is a law on the books dating to territorial days that makes it a crime to terminate a pregnancy except to save the life of the mother.
Brown also noted that a 15-week abortion ban approved earlier this year contains specific language saying it does not repeal the older and stricter law which carries a penalty of up to five years in prison.
But Brown said that new law did not contain a trigger to repeal the 15-week ban if Roe v. Wade was overturned. And what that means, he told Pima County Superior Court Judge Kellie Johnson, is that she cannot simply accede to Brnovich’s request to reinstate the territorial law and completely ignore the newer statute which was validly enacted — a law he said conforms with the Supreme Court decision issued in June, after lawmakers had gone home, that leaves the question of abortion to legislators in each state.
“In granting the relief requested by the attorney general, this court would effectively replace its judgment for that of the Arizona Legislature regarding that which the Legislature had decided not to repeal,” Brown wrote.
Conover told Capitol Media Services that staying out of the legal spat was not an option. That’s because her office was involved in the original 1972 lawsuit where Planned Parenthood sued both the Attorney General’s Office and the Pima County Attorney’s Office. In fact, it argued at the time that the territorial law was legal and enforceable.
But Pima County Superior Court Judge Jack Marks sided with Planned Parenthood, ruling the law was “overbroad and violates the fundamental rights of marital and sexual privacy of women.”
That was initially overruled by the state Court of Appeals. But the judges overturned their own decision after the Supreme Court voided Roe, issuing an injunction against enforcing the law that remains in effect to this day.
Now Brnovich has reopened that same case, asking Johnson to dissolve the injunction. And that, said Conover, forced the issue for her office.
“The analysis was there was no way to not be a party” to the reopened case, she said. “There was no mechanism by which to remove ourselves.”
That, however, still left the decision of whether to stick with the office’s 1972 decision to defend the law or side with Planned Parenthood’s arguments that that law could not be “harmonized” with everything the legislature has enacted since, right up to the 15-week ban that Gov. Doug Ducey signed in March and is set to take effect in late September.
Conover said she believes Planned Parenthood has the more “persuasive” legal arguments.
“I certainly think that a great deal of statutory legislative work and case law has occurred in 50 years,” she said. “So the landscape has changed.”
It isn’t just the new 15-week ban that conflicts with the territorial law, a version of which dates back to 1864.
In its own legal filings, Planned Parenthood cited a series of other laws approved by the Republican-controlled legislature since Roe. That includes a 1984 statute specifically allowing abortions up to the point of viability — somewhere between 22 and 24 weeks — along with exceptions beyond that point to “preserve the life or health of the woman.”
There also have been various regulations like a 2009 law that imposed a 24-hour waiting period, another law that same year about licensing and operation of abortion facilities, and a 2021 law saying that only physicians can administer drugs for a medication abortion.
What all that means according to attorney Andrew Gaona, is that Johnson cannot simply dissolve the injunction but must consider the fact that since 1973 lawmakers have “authorized what had previously been forbidden.”
More to the point, Gaona wants Johnson to rule that those post-Roe state laws make it clear that licensed physicians are allowed to provide abortions up until the gestational limits — and that the territorial law banning abortion applies only to people who are not doctors.
“This interpretation properly gives effect to all the Legislature’s enactments,” he told Johnson in his own filing. “And it stands far apart from the untenable interpretation the attorney general posits: that the (territorial law) — which is over 100 years old — somehow preempts a host of other subsequently enacted laws and criminalized nearly all abortions in Arizona, even abortions performed by physicians within the longstanding framework established by the Legislature.”
In a prepared statement, an aide to Brnovich did not address questions about Conover’s decision to side with Planned Parenthood. Instead, Brittni Thomason said her boss sees the entire issue through the lens of the Supreme Court returning the issue of abortion to elected lawmakers.
“In Arizona, our Legislature has consistently reaffirmed our existing law prior to Roe v. Wade,” she said. And that, Thomason said, includes the 15-week ban approved earlier this year, with the language that it does not repeal the prior outright ban.
Of some note is that Brnovich contends the injunction he wants lifted affects only Pima County. He said that prosecutors in the other 14 counties are immediately free to bring charges against any doctor who terminates a pregnancy.
That theory has not been tested, as a spokeswoman for the Maricopa County Attorney’s Office — the only other county in which abortions were performed prior to the Supreme Court ruling — said no cases have been brought. And Jennifer Liewer said her boss, Rachel Mitchell, intends to wait to see what the courts and lawmakers do before taking any action.
But if Johnson rules that the 1864 law is unenforceable against physicians, that sets the stage to appeals right through the Arizona Supreme Court. And what the justices decide would be binding statewide.
Even if the injunction is entirely lifted and the old law is declared enforceable, Conover may not be seeking to imprison doctors.
“I certainly have a strong position about prosecutorial discretion and limited resources,” she said. And that, Conover said becomes even more important with the county in the midst of a spike in homicides.
“There’s nothing that Tucson Police Chief (Chad) Kasmar, Sheriff (Chris) Nanos and I agree on more, which is that we are all definitely focusing our resources on public safety right now and where the needs desperately are,” she said. “So we all three have a very strong opinion on making sure every resource is used as wisely as humanly possible.”
Even before the Supreme Court decision, the Tucson City Council voted unanimously to authorize Kasmar to revise the agency’s general order to reflect that “no physical arrest will be made by an officer for an alleged violation” of state laws limiting abortion.
That, however, doesn’t mean police will ignore violations of the abortion ban if it is allowed to take effect.
City Attorney Mike Rankin said an officer or detective will make a report and present it to prosecutors who would make the final decision.
And that would put it in the hands of Conover.
Conover said that, in siding with Planned Parenthood, she is representing the interests of her bosses on the Pima County Board of Supervisors.
They adopted a resolution in the wake of the newest Supreme Court ruling not only supporting the right of women to terminate a pregnancy but directing the county administrator to ensure that there is a “broad range of legal reproductive health services” available to county residents through the health department as well as work with partners locally, statewide and nationally to “advocate for evidence-based reproductive health care, including abortion services.”