(CNN) — An Arizona Superior Court judge ruled Friday that a 1901 Ban on almost all abortions enforceable in that state, a decision that is likely to be appealed and will almost certainly lead to larger numbers of female voters voting in the state’s hard-fought US Senate and gubernatorial elections.
In ruling that Arizona’s near-total abortion ban could go into effect, Pima County Superior Court Judge Kellie Johnson granted a request by the state’s Republican Attorney General to vacate an injunction restricting enforcement of Arizona’s abortion ban before the statehood after the Supreme Court ruled in 1973 in Roe v. Calf.
“The court finds that it must set aside the judgment in its entirety because the legal basis for the 1973 judgment has now been overridden,” Johnson wrote in the judgment released Friday.
The case has raised questions about how restrictive abortion laws should be in Arizona, a swing state President Joe Biden supported by fewer than 11,000 votes. It’s a controversial issue that has divided Arizona Republicans and reflects a heated debate nationwide after the US Supreme Court ruled in Roe v. Wade had been overthrown and many GOP-led states bid farewell increasingly restrictive measures run the risk of alienating moderate voters.
The judge’s ruling effectively bans all abortions in Arizona except when the procedure is necessary to save the mother’s life. The decision came a day before Arizona’s 15-week abortion ban was due to go into effect. This law was passed by Arizona legislators prior to the US Supreme Court decision.
Arizona’s conservative lawmakers included language in the bill banning abortion after 15 weeks stating that the new legislation would not overrule the 1901 statute — which was passed before Arizona became a state and can be traced back to 1864. In addition to prohibiting abortion in all cases except when “it is necessary to save (the mother’s) life,” the state statute provides a two to five year prison sentence for abortion providers.
While fighting the attorney general’s move to allow enforcement of the 1901 abortion ban, abortion rights groups had argued that the enactment of both laws would cause significant confusion for both abortion providers and women seeking help. But the judge said in her ruling that she was not considering how the conflict between Arizona’s abortion laws would be resolved.
“While there may be legal issues that the parties seek to resolve with respect to Arizona’s abortion laws, those issues are not for this court to decide,” Johnson wrote in the decision.
The ruling drew a quick rebuke from several pro-choice Democratic groups and from Democratic gubernatorial candidate Katie Hobbs, who said she was “outraged and devastated” by the decision.
“I have no doubt that this draconian law of 1901 will have dire consequences for the health and well-being of Arizona women and their families,” Hobbs said in a statement. “This cruel law effectively bans abortion in Arizona — with no exceptions for rape or incest — and jeopardizes women’s fundamental freedom to make their own health care decisions. … To make matters worse, this law mandates prison terms for abortion providers. Medical professionals will now be forced to think twice and call their attorney before providing patients with often-needed, life-saving care.”
White House press secretary Karine Jean-Pierre called the Arizona court ruling “catastrophic, dangerous and unacceptable.”
“Make no mistake: This backward decision illustrates the troubling trend across the country that Republican officials at the local and national levels are determined to deprive women of their rights, including through (South Carolina Sen. Lindsey) Graham’s proposed national abortion ban.” she said in a statement.
Mark Brnovich, Arizona GOP attorney general who led the court case to try to restore the state’s pre-state abortion ban after the Supreme Court suggested Roe v. Wade down In late June, he tweeted that he was pleased with the decision:
“We applaud the court for confirming the will of the legislature and providing clarity and consistency on this important issue. I have and will protect the most vulnerable Arizonans,” he tweeted.
Disagreements over Arizona’s abortion laws created a confusing legal landscape in Arizona for much of the summer, unfolding amid shifting national political sentiment ahead of November’s midterm elections. While both historical trends and the nation’s pessimistic sentiment on inflation initially appeared to favor Republicans in their bid to seize control of the U.S. House and Senate this November, the Supreme Court decision has incited abortion to women voters across the country — a dynamic that has led to the surprise abortion-rights victory in Kansas and better-than-expected performances by Democrats in special elections for the US House of Representatives since the Dobbs ruling.
The verdict brings new uncertainty to the nationwide marquee races. Republicans, who need a net win of just one seat to flip the Senate, are seeking to unseat Democratic Senator Mark Kelly as he runs for a full six-year term. And Democrats are trying to flip the governor’s mansion, currently held by limited-term Republican Gov. Doug Ducey.
In the Arizona gubernatorial race, Hobbs portrayed GOP opponent Kari Lake as “extreme” about abortion. Lake has repeatedly said she opposes the process, saying in a news conference in August that she “will uphold the laws that are on the books.” But she didn’t say which laws she meant. “If people don’t like the laws in the books, then they have to elect representatives to change the laws. I’m running for governor, not for God. So I’m not allowed to write the laws,” she said.
Her campaign has not responded to CNN’s requests for clarification on her view of the law before statehood.
Both Lake and GOP Senate nominee Blake Masters, who is challenging Kelly, have argued that their Democratic opponents have taken positions in favor of abortion rights that are too removed from the mainstream.
master Removed language from his campaign website after winning the GOP nomination last month, has expressed support for a “Federal Personal Rights Act” and other conservative anti-abortion positions. His campaign told CNN that Masters supports him Graham’s suggestion for a federal abortion ban after 15 weeks, which would provide exceptions to protect the life of the mother and in cases of rape or incest.
But before the ruling, Masters’ campaign did not respond to questions about his position on the pre-statehood law or the court process to enforce it.
In a statement Friday, Kelly said the decision will “have a devastating impact on the freedom that Arizona women have had for decades: to choose to have an abortion when she needs one.” Let’s be clear, that’s exactly what Blake Masters wants to outright ban abortion in Arizona and across the country — with no exceptions for rape or incest. I will never stop fighting to restore these rights to women in Arizona.”
The Planned Parenthood Federation of America fought Brnovich’s move in Pima County Superior Court — the court that heard the 1973 injunction.
The group’s attorneys had argued that the court had a duty to “harmonize all ordinances of the Arizona Legislature as they exist today.” In the post-Dobbs era, the group argued that the law might be “enforceable in some respects” before statehood, but that it shouldn’t apply to abortions performed by licensed physicians — and that the ban should instead apply to everyone else should be considered licensed physicians Physician attempting to provide abortion services.
In a statement, Brittany Fonteno, President and CEO of Planned Parenthood Arizona, said Friday’s ruling “has the practical and deplorable result of sending Arizona residents back nearly 150 years. No archaic law should dictate our reproductive freedom and how we live our lives today.”
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