Judge Peter J. Eckerstrom, writing for the three appellate judges 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 with more leeway. A law that permits abortions for up to 15 weeks took force last month, putting it in conflict with the 1864 ban. State Attorney General Mark Brnovich (R), who 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 law, 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 does not “repeal” the older ban.
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 still be appealed to the Arizona Supreme Court.
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, though 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 overturn 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.