Brnovich asks judge to restore power to criminally charge doctors who perform abortions

Attorney General Mark Brnovich is asking a Pima County Superior Court judge to immediately restore his power and the power of local prosecutors to bring criminal charges against doctors who perform abortions.

In legal papers filed Wednesday, Brnovich argues that the only reason the state Court of Appeals enjoined enforcement of the state’s anti-abortion law was the 1973 U.S. Supreme Court ruling in Roe v. Wade. That historic decision and a follow-up ruling in a 1992 case called Casey v. Planned Parenthood declared that women have a constitutional right to terminate a pregnancy prior to viability of the fetus.

Now, he said, those decisions were overruled by the justices late last month in the case involving the validity of a Mississippi law.

“The U.S. Supreme Court held that the Constitution does not confer a right to abortion,” Brnovich said. And he pointed out that Justice Samuel Alito wrote that “Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.”

“The (Arizona) law has now returned to what it was prior to Roe,” he said.

The only thing blocking that, Brnovich said, is the injunction that he now wants dissolved.

How quickly that can happen remains unclear.

Brnovich has asked for oral arguments allowing his staff members to make their case directly to Judge Kellie Johnson. No date has been set for arguments.

There’s also the question of opposition.

The original injunction was obtained by Planned Parenthood Center of Tucson, an organization that no longer exists. But Brittany Fonteno, president of Planned Parenthood Arizona, said her organization will be filing a response to “explain to the court why it should deny the attorney general’s latest attempt to play politics with people’s lives.”

“Attorney General Brnovich has proven once again that he is out of touch with the majority of Arizonans who support safe and legal abortion,” she said in a statement.

And Gail Deady, an attorney with the Center for Reproductive Rights, which represents doctors and others in abortion issues, called it “outrageous that Arizona’s attorney general is trying to revive this zombie law that has been blocked.”

“Arizonans’ personal health decisions, lives, and future should not be dictated by a century-old, draconian law,” she said in a prepared statement, saying her organization “will continue to stand by Arizonans’ fundamental right to access essential healthcare.”

And there’s another legal issue.

Brnovich contends that the injunction covers only the ability of his office and Pima County prosecutors to enforce the abortion ban that dates as far back as 1901 — and only in Pima County. He contends the old pre-Roe law is now in effect in the other 14 counties and prosecutors are free to bring criminal charges against doctors who violate it.

That issue, however, has never been litigated. And it may not be for some time, as Planned Parenthood and other key abortion providers have halted performing the procedure until the state of the law is clarified.

Brnovich, in his new legal filing, said there’s nothing unclear about the law — and the desire of state lawmakers to outlaw all abortions.

“The Arizona Legislature has never acquiesced in the conclusion that the former (pre-1973 law) is unconstitutional,” his pleading says. “Rather, in anticipation that the U.S. Supreme Court could overturn Roe, the Legislature has repeatedly preserved Arizona’s statutory prohibition on performing abortions except to save the life of the mother.”

For example, Brnovich noted, lawmakers re-codified the exact same 1901 statute just four years after Roe,  preserving the same language but just changing the statute number.

And then there was the vote earlier this year by the Republican-controlled legislature to ban abortions after 15 weeks, something he said lawmakers did “when it was uncertain how the Supreme Court would rule” in the Mississippi case. But Brnovich pointed out even that measure spelled out it did not repeal or overrule the law that was in effect when Roe was decided.

All that, he said, requires the trial judge to issue an order reopening the case and dissolving the injunction.

The case dates back to 1971 when Planned Parenthood Center of Tucson, 10 doctors and an anonymous pregnant woman who wanted an abortion filed suit.

In the original paperwork, the plaintiffs sought to enjoin the state from enforcing the law, alleging that “except for the risk of criminal prosecution” Planned Parenthood would refer some of its clients to physicians to perform the procedure. And the lawsuit acknowledged that “the procedures were not necessary to save the lives of such pregnant women.”

Pima County Superior Court Judge Jack Marks agreed with challengers.

“A fetus is not a person entitled to Fourteenth Amendment (equal protection) rights and does not have constitutionally protected rights,” he wrote. And the judge said the state’s ban “is overbroad and violates the fundamental rights of marital and sexual privacy of women.”

The Court of Appeals initially overturned his ruling, saying, among other things, that the fact the law does not have exceptions for rape or incest does not make it overly broad. And the judges rejected arguments that the law interferes with the right of religious freedom or discriminates against poor women.

But the court reversed its position in 1973, after the U.S. Supreme Court decision, with the judges saying they were bound by that ruling.

UPDATE: Adds comments from Brittany Fonteno, president of Planned Parenthood Arizona