"Cowards": Advocates, Democratic lawmakers vow action after reinstatement of territorial-era abortion ban in Arizona

Jeremy Beren

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A protester holds a sign during a demonstration outside the U.S. Supreme Court following the overturning of Roe v. Wade in June.Ted Eytan/Flickr

By Jeremy Beren / NewsBreak Pinal County, AZ

(Tucson, Ariz.) — Reaction continues to pour in from reproductive rights advocates and state lawmakers following a Pima County Superior Court decision lifting an injunction on Arizona's previously unenforceable 1864 abortion ban.

In an eight-page ruling handed down around 4 p.m. Friday, Judge Kellie Johnson wrote that the U.S. Supreme Court's June decision to strike down the landmark Roe v. Wade case served as sufficient grounds for lifting the injunction on the 158 year-old ban — which criminalizes abortion and threatens up to five years in prison for pregnant people who receive one, as well as providers who perform the procedure.

ARS § 13-3603, first implemented 48 years before Arizona became the 48th state, makes no exception in cases of rape or incest. It was reaffirmed by the territorial legislature in 1901 but had been unenforceable since 1973.

"We applaud the court for upholding the will of the legislature and providing clarity and uniformity on this important issue," Arizona Attorney General Mark Brnovich (R) tweeted. "I have and will continue to protect the most vulnerable Arizonans."

Many current legislators do not share Brnovich's contention that this decision is in Arizona's best interest.

"Unless voters send a clear and decisive message this November by rejecting Republicans that support taking away our right to personal autonomy, there will be untold numbers of victims and a continued eroding of personal liberties," Senate Democratic Leader Rebecca Rios told NewsBreak via text.

"This will kill women"

A statement issued by the Arizona Senate Democrats blamed their Republican colleagues directly for Friday's ruling in the Pima County seat of Tucson.

"The Republican party that has delivered this blow to millions of Arizonans knows exactly the kind of hell they were crafting," the statement read. "This will kill women, break apart families, and trap so many into generational cycles of abuse and poverty. It is hateful and disgusting."

The Arizona House Democrats quickly issued their own statement decrying the "draconian" law and a return to the pre-statehood era.

"Criminalizing abortion puts the life and freedom of every pregnant person at risk," Rep. Melody Hernandez (D) said. "But we know who this ruling will impact most severely — people of color, underserved communities and those who aren't wealthy."

Sen. Mark Kelly (D) said the ruling would have "a devastating impact" on Arizona's pregnant people, while Rep. Tom O'Halleran (D) — whose district encompasses a portion of Pinal County — said he stands with "colleagues, advocates, and women across the country" in defending pro-choice legislation.

Sen. Kyrsten Sinema (D), who often is not in lockstep with her party, slammed the decision for stripping pregnant Arizonans of rights they relied upon for over a century.

"I'll continue working with anyone to advance commonsense proposals ensuring women in Arizona and across the country can access the health care they need and have the ability to make their own decisions about their futures," Sinema said in a Twitter thread.

Relative Republican silence

So far, reaction from lawmakers on the right has been comparatively muted. For some in the state legislature, like Rep. Athena Salman (D), that alone speaks volumes.

"Cowards. They don't want to own (the ban's reinstatement) because it is disastrous and chaotic," Salman tweeted. "This is on each and every one of them."

Sen. Nancy Barto (R), who represents Legislative District 15, sponsored the 15-week abortion ban Gov. Doug Ducey (R) signed into law last spring. She tweeted a congratulatory reply to Brnovich on Friday afternoon but has offered no public statement in the wake of the significant ruling.

Barto is in a competitive race for the redrawn Legislative District 4. Her opponent, Sen. Christine Marsh (D), did respond to the ruling, saying that Democrats "need to flip the legislature this November to protect access to abortion."

Meanwhile, Center for Arizona Policy president Cathi Herrod thanked Brnovich for his leadership and believes the state's abortion law is no longer unclear.

"Abortion law now is back to what it was in 1973 before (the) Roe opinion," she tweeted. "Abortion (is) not legal except to save the life of the mother."

Abe Hamadeh (R), the Donald Trump-endorsed attorney general candidate vying for Brnovich's job this November, claimed the ruling "affirmed the intent of the Legislature." Hamadeh said he would "interpret laws as written" should he become Arizona's top prosecutor — confirming an intent to prosecute pregnant people or abortion providers.

Maricopa County Attorney Rachel Mitchell (R), who previously signaled she would at least prosecute providers based on the 1864 law's stipulations, also has not commented publicly on the ruling. The same cannot be said for Julie Gunnigle (D), Mitchell's opponent in the county attorney race.

"I share the shock, pain, and horror of all Arizonans as we go back to the territorial era where all abortions are criminalized, except that narrow exception for the health and safety of the pregnant person's life," Gunnigle told NewsBreak via phone. "I renew my pledge that not now and not ever should we use the criminal law to invade people's bodies, bedrooms, and privacy."

Neither Rep. Teresa Martinez (R) nor Sen. T.J. Shope (R), who represent Pinal districts, has released a public statement about Johnson's ruling. NewsBreak has requested comment from both.

Reaction from providers

Planned Parenthood Arizona (PPAZ) paused services following Friday's ruling. The organization maintained that criminalizing abortion would not "reduce the need and demand" for reproductive healthcare and laid blame at Brnovich's feet, as well as other "anti-abortion elected officials."

"We know that (Friday's) ruling does not reflect the will of the people, as Arizonans are overwhelmingly in favor of abortion access," PPAZ President and CEO Brittany Fonteno said. "Let me be clear, this is not the end of the fight, this harmful ban has no place in Arizona and we will persist until that is achieved."

Independent Phoenix-based clinic Desert Star Family Planning lamented the ruling and claimed some Arizonans have started traveling to New Mexico to receive reproductive healthcare. The clinic's Twitter account echoed what founder Dr. DeShawn Taylor previously told NewsBreak — that widespread changes in who runs the state are the only way Friday's ruling will be reversed.

"This ruling is not surprising," one tweet read. "Advocates had just lost the case for legal abortion in Arizona in 1972. Attempts to repeal this law did not even receive hearings. This changes when we change who runs Arizona. Period."

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Jeremy is a freelance journalist covering health, energy, labor, and local politics. Reach him at jeremy.beren@newsbreak.com.

Phoenix, AZ
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