Brnovich will push to revive century-old abortion ban in Arizona

A protester outside the Arizona Capitol on June 24, the day the Supreme Court handed down the decision overruling Roe v. Wade, the 1973 case that recognized a right to an abortion. Attorney General Mark Brnovich has since said that a 1901 law, still on the books, that bans abortion should be the law in the state now. (Photo by Troy Hill/Cronkite News)

WASHINGTON – Arizona Attorney General Mark Brnovich said he will push to revive a 120-year-old ban on abortion, changing his earlier position that a law allowing abortions until 15 weeks of pregnancy would take effect this fall.

The Wednesday announcement, blasted as “cruel and callous” by abortion rights groups, is just the latest development in the chaos surrounding abortion law in Arizona, after the U.S. Supreme Court last week overruled Roe v. Wade, the 1973 ruling that recognized a constitutional right to an abortion.

Uncertainty about the law led all but one of the providers in the state to suspend abortion services last week. The final provider, Acacia Women’s Center in Phoenix, confirmed Thursday that it is no longer accepting appointments for abortion services.

Advocates pledged to continue to fight for abortion rights. Planned Parenthood of Arizona said it will “fight back in court against the attorney general’s effort.”

“No one should be forced to flee their community and cross state lines in secret to access essential health care,” said Brittany Fonteno, CEO of Planned Parenthood Arizona, in a statement Wednesday.

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In an announcement posted to Twitter Wednesday, Brnovich said that the Arizona 1901 law banning abortions, except to save the life of the mother, is still in effect, even though it was put on hold by a 1973 court injunction. He said his office would “soon be asking the court to vacate the injunction” so the law could be enforced again.

Brittni Thomason, a Brnovich spokesperson, said the 1901 law “was re-codified” by the Legislature in 1977 and is still “valid law and not repealed.”

“Our office will soon be moving to lift the injunction in Pima County in order to provide further clarity and uniformity,” Thomason said. Until then, she said, prosecution decisions will be left to county attorneys.

Brnovich said Wednesday that the 1901 law supercedes a measure passed this year, and signed into law in March, that would ban abortion after 15 weeks. That’s a change from last week, when Brnovich said the 15-week law would take effect in September.

He explained the change in course by saying his office had concluded the Legislature “made its intentions clear regarding abortion laws,” and that the 1901 ban would not be repealed by the new 15-week law.

If the injunction is lifted and the 1901 law is enforced, abortions would be criminalized unless they were to save the pregnant person’s life. Anyone who performed an abortion could face two to five years in prison.

Fonteno said the latest action is “a cowardly move by the chief legal officer of our state and will be catastrophic for people seeking abortion care in Arizona.”

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Raquel Terán, chair of Arizona Democratic Party, said Brnovich’s “attempt to take Arizona back in time over a century and implement extreme law that goes against what the overwhelming majority of Arizonans want is a blatant, pathetic abuse of power.”

The 1901 law is not the only one on the books in Arizona that advocates are hoping to block. They went to court last weekend, just hours after the Supreme Court overruled Roe, seeking an emergency motion to keep the state’s 2021 “personhood” law from taking effect.

That law had been on hold because of Roe. It if took effect, it would grant rights to fertilized eggs, embryos and fetuses at any stage of development.

The advocates believe they have voters on their side. They point to an OH Predictive Insights poll from May that said the vast majority of Arizonans support abortion rights, with 41 percent saying it should be available under all circumstances and 46 percent supporting in some cases.

Jared Keenan, legal director of American Civil Liberties Union of Arizona, said in a statement Thursday that “the Attorney General would rather ignore the needs of his constituents and reinstate an inhumane law older than the state itself.”

“Forced pregnancy has no place in Arizona,” Keenan said. “We will continue to fight back in the courts, at the ballot, and on the streets for our basic rights.”

Tracy Abiaka TRAY-see Ah-"bee"-ah-kah (she/her/hers)
News Reporter, Washington, D.C.

Tracy Abiaka expects to graduate in December 2022 with a master’s degree in mass communications. Abiaka has been a research assistant for the Donald W. Reynolds National Center for Business Journalism at ASU and an editorial intern for Phoenix Business Journal.