AZ Attorney General: Pre-Statehood Law Banning Abortions Is Enforceable

Republican Arizona Attorney General Mark Brnovich said on Wednesday that the law banning abortions enacted there before statehood is valid and enforceable. He announced that he will file a case shortly seeking an order removing an injunction that has blocked it for almost 50 years.

Brnovich’s legal opinion is contradicted by Republican Gov. Doug Ducey, who says that a new law he signed in March takes precedence over the older law passed in 1901. The new act bans abortions after 15 weeks of pregnancy.

The dispute points up legal issues that have arisen nationwide about the enforceability of pre-existing abortion regulations since the U.S. Supreme Court reversed the 1973 ruling in Roe v. Wade on June 24. The recent ruling returns the issue of abortion regulation or prohibition to individual states.

Pro-life advocates who drafted the new Arizona law and Nancy Barto, the GOP state senator who sponsored it, also disagree with Gov. Ducey. They have pointed to specific language in the new law that says it does not override the older ban.

Brnovich wrote in a Twitter post that he has concluded that the legislature was clear that it did not intend to repeal the pre-statehood law. He said the old law is “back in effect and will not be repealed” when the new law goes into effect in September.

Brnovich is part of a group of Republicans running for the party’s nomination for U.S. Senate in the August 2 primary election. The RealClearPolitics polling average shows Bronvich currently taking 19.5% of the primary vote, trailing Blake Masters with 29%.

The governor’s office said that it is currently reviewing Brnovich’s opinion issued this week and had no other immediate comment.

The 1901 law provides a prison sentence of two to five years for anyone who assists a pregnant woman in obtaining an abortion. It does not apply in cases where the woman’s life is in jeopardy.

After the Supreme Court’s ruling on June 24, Planned Parenthood Arizona quickly ceased providing abortions in the state. CEO Brittany Forteno said that the possibility of prosecutions under the old law made it too risky to continue. Other providers in the state followed their lead.

The Arizona Department of Health Services reported the state saw 13,000 abortions performed in 2020. Of that number, fewer than 650 were performed after the 15th week of pregnancy.