An Arizona Superior Court judge could rule as early as Tuesday on whether a 1901 ban on nearly all abortions in that state can be enforced, a court case that has created confusion about the current law in Arizona and could energize female voters to turn out in greater numbers in the state’s hotly contested US Senate and governors races.
The case, which is likely to see an appeal whichever way the ruling goes, gets to the issue of how restrictive abortion law should be in Arizona, a swing state that President Joe Biden carried by fewer than 11,000 votes. It’s a controversial topic that has divided Republicans in Arizona and is reflective of a pitched debate nationwide in the wake of the US Supreme Court overturning Roe v. Wade in late June, with many GOP-led states passing increasingly restrictive measures that run the risk of alienating moderate voters.
Earlier this year, before that US Supreme Court decision, the Arizona Legislature passed a law outlawing abortion after 15 weeks, which was signed by Republican Gov. Doug Ducey and was slated to take effect on September 24. But conservative Arizona lawmakers included language in the bill stating that the new legislation would not override the 1901 law – which was passed before Arizona became a state and can be traced back to as early as 1864 – that bars abortion in all cases except when “it is necessary to save (the mother’s) life.” That earlier law carries a prison sentence of two to five years for abortion providers.
The earlier law was blocked by a court injunction in Pima County Superior Court after the Roe decision in 1973. But after the high court overturned Roe in June, Arizona’s Republican Attorney General Mark Brnovich announced that he would seek to enforce the pre-statehood abortion ban.
He asked the Pima County Superior Court to lift the injunction, arguing that the court needed to provide “clarity and uniformity for our state.” Brnovich’s position, which he took while unsuccessfully vying for the GOP nod for US Senate, conflicts with that of the Republican governor, who has maintained that the 15-week ban should take precedence.
The confusing legal landscape in Arizona has unfolded against the backdrop of a shifting national political landscape ahead of November’s midterms. While both historical trends and the nation’s sour mood about inflation had initially appeared to favor Republicans in their quest to take control of the US House and Senate this November, the Supreme Court’s decision on abortion has energized female voters all over the country – a dynamic that led to the surprising victory for proponents of abortion rights in Kansas and better-than-expected performances for Democrats in special elections for the US House since the Dobbs ruling.
Political consultants from both parties in Arizona acknowledge that consternation over what the law will be in the state has injected uncertainty into the marquee statewide races. Republicans, who need a net gain of just one seat to flip the Senate, are trying to unseat Democratic Sen. Mark Kelly as he runs for a full six-year term. And Democrats are trying to flip the governor’s mansion, currently held by term-limited Ducey.
Even slightly higher turnout for Democrats could be pivotal in races that could be decided on the margins. A recent Wall Street Journal poll found that 57% of voters opposed a ban at 15 weeks with an exception only for the health of the mother.
In the Arizona governor’s race, Democrat Katie Hobbs has tried to paint GOP opponent Kari Lake as “extreme” on abortion. Lake has repeatedly said she is opposed to the procedure and in an August news conference said that she would “uphold the laws that are on the books.” But she did not specify which laws she meant. “If people don’t like the laws on the books, then they need to elect representatives who will change the laws. I’m running for governor, not for God. So I don’t get to write the laws,” she said.
Her campaign did not respond to CNN’s request for clarification on her view of the pre-statehood law or a query about whether she believes Arizona’s new 15-week ban on abortion goes far enough. Hobbs has said she will veto any legislation that “compromises a woman’s right over her own body” and she called for the repeal of the pre-statehood abortion ban before the Supreme Court overturned Roe v. Wade.
Both Lake and GOP Senate nominee Blake Masters, who is challenging Kelly, have argued that their Democratic opponents have adopted positions that are too far out of the mainstream in favor of abortion rights.
But Masters removed language from his campaign website expressing support for a “federal personhood law” and other conservative anti-abortion stances after winning the GOP nomination last month. His campaign told CNN that Masters does support South Carolina Sen. Lindsey Graham’s proposal for a federal ban on abortion at 15 weeks, which would provide exceptions to protect the life of the mother and in the case of rape or incest. But Masters’ campaign did not respond to questions about his position on the pre-statehood law or the court case to enforce it.
Kelly, a supporter of abortion rights, said in a recent interview with KTAR News that there could be restrictions “late in pregnancy” but that “we just need to make sure that women can get the health care they need if they’re facing serious circumstances.”
Planned Parenthood Arizona initially paused abortion services following the high court’s ruling in Dobbs v. Jackson Women’s Health Organization in June and then resumed care. But it is now bracing for another potential halt if the judge rules that the pre-statehood law can go back into effect.
Planned Parenthood Federation of America has been fighting Brnovich’s move in Pima County Superior Court – the court that handled the 1973 injunction – where it argued in a legal filing that “providers in Arizona have been left to navigate inconsistent statements by elected officials about the status of the law” and that Brnovich has pushed to enforce the pre-statehood law while “blatantly ignoring that Arizona’s statutory code today includes dozens of laws that plainly permit physicians to provide abortions.”
Planned Parenthood’s lawyers argued that the court had a duty to “harmonize all of the Arizona Legislature’s enactments as they exist today.” In the post-Dobbs era, the group argued that the pre-statehood law can “be enforceable in some respects” but that it should not apply to abortions provided by licensed physicians – and instead that the ban should apply to anyone other than a licensed physician who attempts to provide abortion services.
“There are many laws that the state legislature has passed over the past 50 years that clearly regulate abortion as a safe and legal medical procedure that can be performed by a licensed physician,” said Brittany Fonteno, president and CEO of Planned Parenthood Arizona. “The Attorney General doesn’t get to cherry pick one particular law and ignore all of the other laws that are on the books.”
Though the group nationally does not support restrictions on abortion, Fonteno said their legal strategy in Arizona was guided by a recognition of what was “feasible” in the post-Dobbs era given Republican control of the statehouse in Arizona and what she described as “a state court system that has been stacked with anti-abortion judges.”
Brnovich’s office did not respond to multiple requests from CNN to discuss its arguments in the case and what the legal landscape would look like if the judge allows the pre-statehood ban to go into effect a few days before Arizona’s 15-week ban on abortion becomes law.