Arizona attorney general: Pre-1901 abortion ban enforceable

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PHOENIX (AP) — Arizona's Republican attorney general announced Wednesday that a pre-statehood law that bans all abortions is enforceable and that he will soon file for the removal of an injunction that has blocked it for nearly 50 years.

Attorney General Mark Brnovich's office said after the U.S. Supreme Court overturned its 1973 decision that said abortion was a constitutional right that he was weighing whether the old law could be be enforced.

His decision puts him at odds with Republican Gov. Doug Ducey. The governor had said after he signed a new law banning abortions after 15 weeks in March that it took precedence over the law in place since at least 1901, 11 years before Arizona statehood.

But abortion opponents who wrote the new law and the Republican state senator who sponsored it, Nancy Barto, argued that the old law could be enforced. They pointed to a specific provision that said it did not override that law.

“Our office has concluded the Legislature has made its intentions clear with regards to abortion laws,” Brmovich said on Twitter. “ARS 13-3603 (the pre-statehood law) is back in effect and will not be repealed” when the new law take effect in late September.

Ducey spokesman C.J. Karamargin the governor's office was reviewing Brnovich's decision and had no immediate comment.

The old law says anyone who helps a pregnant woman obtain an abortion can be sentenced to two to five years in prison. The only exception is if the life of the woman is in jeopardy.

Abortion clinics across Arizona had stopped providing the procedures within hours of last Friday's Supreme Court ruling. They cited concerns that the old law could be enforced.

Planned Parenthood Arizona President and CEO Brittany Forteno said the group was outraged by Brnovich's decision, which came after providers and patients had been living in distress since Friday.

“Now, our extremist Attorney General has announced his plans to reinstate an antiquated, enjoined 1901 law that will ban all abortion in Arizona until the new law takes effect,” she said. "It’s unconscionable and drastically out of line with the 7 in 10 Arizonans who support abortion access.”

Besides the total ban, a law that grants eggs and fetuses all rights is also on the books. Abortion rights advocates are asking a judge who refused to block it last year because Roe v. Wade was in effect to reconsider his decision. The judge did block that law's ban on abortions because of a fetal genetic abnormality.

After the Supreme Court decision, an estimated 7,000 to 8,000 abortion rights protesters gathered at the state Capitol, where the Legislature was completing work on the yearly session.

State police used tear gas to disperse the crowd after a small group of protesters started banging on the state Senate's glass front and one person tried to kick in a sliding glass door. No arrests or injuries were reported Friday night, but protests continued for two days and several people were arrested.

Brnovich is among several Republicans vying for their party's nomination for U.S. Senate in the Aug. 2 primary.

There were just over 13,000 abortions in Arizona in 2020, according to the most recent report from the Arizona Department of Health Services. Of those, fewer than 650 were performed after 15 weeks of gestation.