PHOENIX — Planned Parenthood Arizona is asking a Pima County judge to delay implementing her ruling that most abortions in Arizona are illegal.
In legal papers filed Monday, attorney Andrew Gaona told Judge Kellie Johnson that her decision 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. He said these need to be examined by an appellate court.
More to the point, Gaona said allowing the old law to suddenly be implemented again, 49 years after it was found unconstitutional, will harm not only Planned Parenthood but also its patients “and the general public.”
By contrast, he said, Attorney General Mark Brnovich, who brought the legal action to quash abortions, “cannot establish that a stay well cause any injury to the state.”
“This is unsurprising because 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. And that specifically includes 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.
The move will be opposed by Brnovich.
Press aide Katie Conner said the whole purpose of the lawsuit was “to seek clarity on this important issue. 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.
Hanging in the balance is a law tracing its roots back to 1864 which makes abortion a crime except to save the life of the mother. The statute sets punishment at between two and five years in state prison.
All that changed in 1973 when the U.S. Supreme Court issued the historic ruling in Roe v. Wade finding a constitutional right of women to terminate a pregnancy. Based on that, the state Court of Appeals enjoined enforcement of the Arizona law.
All that changed in June when the high court reversed itself, a move that left it to each state to decide its own laws. Brnovich then went to court to have the 1973 injunction dissolved.
Planned Parenthood objected, pointing out that lawmakers had enacted various rules for legal abortions in the 49-year interim. That includes the 15-week ban, approved earlier this year, which took effect Saturday.
But 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” in his bid to dissolve the 1973 injunction, 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 that 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 his client who is raising questions about conflicting laws.
Even Gov. Doug Ducey issued a statement saying that, as far as he was concerned, that 15-week ban he signed earlier this year is now in effect. In fact, the governor 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 on his request.
He wants her to order Brnovich to respond by the end of the day Tuesday and allow him to reply to any arguments the following day.