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Future of Arizona’s abortion law debated in federal court

by | Aug 22, 2022

By Dave Andrusko

After hearing arguments regarding the status of abortion laws in Arizona, Superior Court Judge Kellie Johnson said she would make a ruling within 60 days but no sooner than Sept. 20.

On Friday, Solicitor General Beau Roysden said “Our position is that the court should not check its common sense at the door.” 

Arizona’s 1901 law outlawed most abortions. When the Supreme Court handed down its Roe v. Wade decision, Pima County Superior Court “blocked enforcement of the ban with an injunction,” Andrew Oxford reported.

But after the Supreme Court overturned Roe v. Wade in June, Republican Attorney General Mark Brnovich filed a motion to end the injunction and put the ban back into force

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

“This is the law and the court, as a court of law’s job, is to apply the law and then all these policy arguments can go to the Legislature, which will of course convene in January,” Roysden said. He summarized the relevant background in a few sentences, according to Court House News’s Michael McDaniel:

It’s very obvious what happened. Plaintiffs brought a challenge to this long-standing 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 Mac Dougall, Planned Parenthood attorney, said the 1901 law “conflicts with half a century of other laws the Legislature has passed regulating abortion, such as a law signed this year that would ban abortions after 15 weeks of pregnancy.” She said

“The AG wants this court to turn every principle of statutory interpretation on its head and grant him a undemocratic windfall by allowing the oldest statute on abortion in Arizona’s books to resurrect and overtake all other legislative enactments on abortion.”

Not so fast, Roysden countered. 

“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.”

Reporter McDaniel added that “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.”

Categories: State Legislation
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