Appeals Court Blocks Near-Total Abortion Ban in Arizona

A pro-life activist holds a plastic fetus in a protest in front of the U.S. Supreme Court in Washington, on June 23, 2022. Nathan Howard/Getty Images

The Arizona Court of Appeals on Friday temporarily blocked a 150-year-old law in the state that bans nearly all abortions.

The three-member panel’s ruling (pdf) comes after a state judge ruled on Sept. 23 (pdf) to lift an injunction against the abortion ban, which makes it a crime to provide an abortion unless the mother’s life is in danger. On Sept. 30, the judge—Pima County Superior Court Judge Kellie Johnson—rejected an effort by abortion activists to freeze her order (pdf).

The panel on Friday said that Johnson had erred in her ruling, and granted Planned Parenthood’s motion for an emergency stay.

The abortion ban at issue in the case was first enacted in the Civil War era in the 1860s, before Arizona became a state, and was in effect until the Supreme Court made its Roe v. Wade decision in 1973. An injunction was later put on Arizona’s abortion ban in the same year.

Roe had largely enabled abortions up until 24 weeks across the United States for up to five decades, overturning state laws, before it was overturned by the Supreme Court in late June.

After Roe was overturned, Arizona Attorney General Mark Brnovich, a Republican, asked the court to restore the abortion ban.

Appeal by Planned Parenthood

Planned Parenthood of Arizona appealed and argued that subsequent pro-life laws have since been passed by Arizona’s legislature and those laws should supersede the near-total ban from the 1860s.

Those laws include one that bans abortions after 15 weeks, signed by Republican Gov. Doug Ducey in late March, that took effect on Sept. 24.

But Roe. v Wade was the only reason why an injunction was in place against Arizona’s near-total ban, Johnson said in late September. She sided with Brnovich’s office, finding that the 1973 injunction should be entirely vacated because it was based solely on Roe v Wade, which has since been overturned.

The Arizona Appeals Court sided with Planned Parenthood on Friday, saying that other legislation passed in the state since Roe should be considered.

“Arizona courts have a responsibility to attempt to harmonize all of this state’s relevant statutes,” Presiding Judge Peter J. Eckerstrom wrote in the brief order.

“The court further concludes the balance of hardships weigh strongly in favor of granting the stay, given the acute need of healthcare providers, prosecuting agencies, and the public for legal clarity as to the application of our criminal laws.”

The latest ruling means that while the case proceeds, abortions can legally resume in the state at least up until 15 weeks after pregnancy.

The Arizona Appeals Court has set a hearing for next week on Oct. 11, to determine whether Planned Parenthood’s full appeal should be expedited and to set a briefing schedule.

Tom Ozimek contributed to this report.