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Arizona court halts enforcement of near-total abortion ban

Abortion rights supporters rally in Tucson on July 4. (Sandy Huffaker/AFP/Getty Images)
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An Arizona appellate court halted enforcement of the state’s near-total abortion ban late Friday, staying a lower court’s decision to reinstate an older law that allows the procedure only if it is needed to save the life of a pregnant person.

The order by the Arizona Court of Appeals followed a challenge by Planned Parenthood Arizona, a reproductive health organization, of a ruling in September by Pima County Superior Court Judge Kellie Johnson. The stay is in place until the appellate court can hear the appeal. Johnson had lifted a decades-long injunction on the near-total restrictions, which are rooted in an 1864 law that has no exceptions for victims of rape or incest and threatens abortion providers with imprisonment for as long as five years.

Arizona is one of several Republican-controlled states that is pointing to a century-old law as the rationale to roll back access to abortions. (Video: Julie Yoon, Joshua Carroll/The Washington Post)

Judge Peter J. Eckerstrom, writing for the three-member panel that issued the stay, said the lower court may have erred in resurrecting the Civil War-era law, because it conflicts with more recent laws that provide abortion seekers more leeway. A law that permits abortions for up to 15 weeks took effect last month, putting it in conflict with the 1864 ban. State Attorney General Mark Brnovich (R), who opposes abortion rights and has said he plans to enforce the older law, had urged the courts to provide clarity on the issue.

Johnson, the Pima County judge, had ruled that the older prohibition, which was updated and codified in 1901, supersedes the 15-week ban enacted this year. She said in her order that the state legislature had expressly written the 2022 law so that it did not “repeal” the older ban.

Abortion is now banned in these states. See where laws have changed.

But the three appellate judges said that Planned Parenthood’s attorneys had “demonstrated a substantial likelihood of success” for their legal challenge against the stricter prohibitions.

“Arizona courts have a responsibility to attempt to harmonize all of this state’s relevant statutes,” Eckerstrom wrote in a one-page order, adding that the “acute need of [health care] providers, prosecuting agencies, and the public for legal clarity” had prompted the order.

The stay brings “temporary respite to Arizonans,” said Planned Parenthood Arizona president and chief executive Brittany Fonteno in a statement.

“Planned Parenthood Arizona is committed to defending reproductive freedom for all and continuing this fight until this 150-year-old law is taken off the books for good,” she said.

A Brnovich spokeswoman, Brittni Thomason, said in a statement that his office “understands this is an emotional issue, and we will carefully review the court’s ruling before determining the next step.” A decision by the appeals court on the 19th-century prohibitions could be appealed to the Arizona Supreme Court.

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Reproductive rights have been in flux in many states since June, when the U.S. Supreme Court overturned Roe v. Wade, which established a nationwide right to abortion in 1973. The reversal returned that decision to Congress and the states. It has occasionally resulted in legal chaos. Several states did not update their abortion laws after Roe, meaning conflicting regulations may be on the books.

In Arizona, Brnovich and abortion rights activists both recently called for the state legislature to hold a special session to address the confusion, the Arizona Republic reported.

In Ohio — another state where reproductive rights have been curtailed since the overturning of Roe — a judge on Friday issued a preliminary injunction on a six-week abortion ban while a constitutional challenge is heard, citing individual liberty. The procedure is now permitted up to the 22nd week of a pregnancy.

Roe v. Wade and abortion access in America

In June 2022 the Supreme Court struck down Roe v. Wade, which for nearly 50 years has protected the right to abortion. Read the full decision here.

What happens now? The legality of abortion is left to individual states. The Post is tracking states where abortion is banned or under threat, as well as Democratic-dominated states that moved to protect abortion rights enshrined in Roe v. Wade.

Abortion pills: Abortion advocates are concerned a Texas judge’s upcoming abortion pill ruling could halt over half the legal abortions carried out nationwide. Here’s how the ruling could impact access to the abortion pill mifepristone.

Post-Roe America: With Roe overturned, women who had secret abortions before Roe v. Wade felt compelled to speak out. Other women, who were and seeking abortions while living in states with strict abortion bans shared also shared their experience with The Post through calls, text messages and other documentation that supported their accounts. Here are photos and stories from across America since the reversal of Roe v. Wade.