Arizona appeals court puts hold on territorial abortion ban; Planned Parenthood to resume procedure

The Arizona Court of Appeals has put on hold the territorial law that bans nearly all abortions in the state until a full appeal of an earlier ruling on it is heard.

The court's decision means that abortions could occur legally while the emergency stay is in effect, though presumably the procedure is subject to a newer law that bans abortions after 15 weeks of pregnancy.

Planned Parenthood Arizona said it would restart the procedure at its clinics following the ruling.

The organization has a likelihood of succeeding in its effort to keep an injunction on the 1864 law that was in place since the 1973 Roe v. Wade decision, according to a unanimous ruling by a three-judge panel led by Presiding Judge Peter J. Eckerstrom.

The judges agreed with Planned Parenthood's argument that "Arizona courts have a responsibility to attempt to harmonize the state's" abortion laws. The 15-week law took effect last month.

The appellate judges wrote in their order on Friday that an "acute need" to straighten out the state's abortion laws existed.

"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. Notably, in the underlying litigation both parties sought some form of such clarification from the court," the ruling states.

State Attorney General Mark Brnovich had asked the Pima County Superior Court to lift an injunction on the 1864 law following the U.S. Supreme Court's June decision that overturned Roe. Superior Court Judge Kellie Johnson granted that request Sept. 23. A week later, Johnson rejected a request to put her order on hold.

The state appellate court's Division Two overruled that decision on Friday and granted the stay.

The territorial law mandates two to five years in prison for anyone who facilitates an abortion. Yet Gov. Doug Ducey maintains that a law he signed this year that allows abortion until 15 weeks of gestation — after which it's banned except to save the mother's life — supersedes the old law.

Brnovich sent a letter to Ducey in late September asking him to order the Legislature into a special session to give "clarity" to the two abortion laws.

Eckerstrom ordered a scheduling conference to set a schedule for Planned Parenthood and Brnovich's office to submit briefs on the case to the appellate court and to determine whether the group's appeal "should be accelerated."

Abortions to resume after ruling

Planned Parenthood Arizona's president and CEO Brittany Fonteno said in a statement that abortions in its clinics would resume. But she warned that the law could still be later ruled valid.

"While today's ruling brings temporary respite to Arizonans, the ongoing threat of this extreme, near-total abortion ban that has no regard for the health care of those across the state, including survivors of rape or incest, remains very real," Fonteno said.

Brnovich's office later released a statement that read, "Our office understands this is an emotional issue, and we will carefully review the court’s ruling before determining the next step."

The stay and even the pending appeal are unlikely to settle the matter. The losing side, whether the state or Planned Parenthood, could still appeal to the Arizona Supreme Court.

"The trial court ruling was well-reasoned," said Cathi Herrod, president of the Center for Arizona Policy, a powerful conservative and anti-abortion advocacy group. "I fully expect it to be upheld."

In Maricopa County, a judge is set to preside over a fresh lawsuit filed Oct. 4 by an Arizona abortion doctor and the Arizona Medical Association that seeks to neutralize the territorial law with a court ruling that makes it apply only to non-physicians.

Similar to arguments Planned Parenthood has made in the injunction case, Dr. Paul Isaacson and the association claim that the state should consolidate not just the 15-week and territorial laws, but laws passed by the Legislature since 1973 that seem to recognize legal abortion through regulation of the procedure.

In a video conference call on Friday afternoon, Fonteno said she "welcomed" the effort in Maricopa County.

She also clarified that Planned Parenthood’s Tucson clinic, which was one of the few in the state to provide abortions before Johnson's ruling to lift the injunction two weeks ago, would be the first to resume abortions. Phoenix and other locations would offer the procedure at a later date, she said.

Planned Parenthood will abide by the new 15-week law in the interim, she added.

Reach the reporter at rstern@arizonarepublic.com or 480-276-3237. Follow him on Twitter @raystern.

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This article originally appeared on Arizona Republic: Arizona abortion law: State appeals court puts 1864 ban on hold