'Protect reproductive freedom': Hobbs backs Planned Parenthood, opposes 1864 abortion ban in Arizona

In a court brief filled with personal stories of women, Gov. Katie Hobbs asked the state Supreme Court to keep abortion legal in a case that threatens to reactivate a 19th-century ban on the practice.

The Democratic governor's 17-page amicus brief in a case brought by Planned Parenthood against Arizona asks the court to avoid any constitutional questions about abortion rights in their deliberations and instead affirm an appellate court opinion that the pre-statehood ban can exist alongside modern laws.

The stories of the six women mentioned in the brief only by their first names "help illustrate how access to abortion is critical for the health, safety, and well-being of Arizonans," the document states.

Hobbs noted in a separate statement to the news media that the brief follows her promise to "protect reproductive freedom."

"I will continue to fight relentlessly against out-of-touch extremists who want to jail doctors and end the right of Arizonans to make decisions about their own bodies and futures," Hobbs said. "Together, I know we can protect reproductive freedom and stop radicals from reinstating a total abortion ban.”

Court to decide fate of 1864 ban on abortion

The brief was filed as part of a court case by Planned Parenthood that challenged the pre-statehood law in the early 1970s, before the U.S. Supreme Court's 1973 Roe v. Wade decision.

The Territory of Arizona banned abortion in 1864 with a law that mandated two to five years in prison for anyone providing means for an abortion and a one-year minimum sentence in prison for women who received abortions. (The latter provision was repealed in 2021.)

It's unclear if any women served time for getting an abortion, but numerous people were convicted under the law over the decades.

After Roe v. Wade, the Arizona Court of Appeals approved a stay on the law that remained in place — allowing legal abortions in the state — until the June 2022 decision by a more conservative U.S. Supreme Court to overturn the 1973 decision.

The decision put the question of abortion policy back in the hands of states, and the Pima County Superior Court — where the 1973 stay on the pre-statehood law was issued — ruled that the 1864 law was now in effect. The state Court of Appeals overruled that in December 2022, however, agreeing with the theory by Planned Parenthood lawyers that other state laws crafted over the years regulate abortion and give it legal status, while the 1864 law can be interpreted to ban only unlicensed practitioners from performing abortions.

Under the ruling, a 2022 law signed by then-Republican Gov. Doug Ducey that allows abortions only until the 15th week of gestation is in effect in Arizona. The law allows an exception to save the life of a mother but not for cases of rape or incest.

State Attorney General Kris Mayes, a Democrat who was elected along with Hobbs in November, refused to defend against Planned Parenthood's case, but Yavapai County Attorney Dennis McGrane joined anti-abortion doctor Eric Hazelrigg as a second intervenor, appealing the December ruling to the state Supreme Court.

'Intervenor': Who is the Gilbert physician working to enforce a near-total abortion ban in Arizona?

Alliance Defending Freedom, a conservative legal group based in Scottsdale, is providing legal services in the case at no charge.

Oral arguments in the case are scheduled for Dec. 12.

Personal stories highlight abortion choices

Besides raising "serious constitutional questions," the request by the intervenors "wreaks havoc on the privacy, liberty, and autonomy of countless Arizonans, preventing them from charting the course of their own lives," Hobbs' brief states.

Hobbs relates stories of women identified only by their first names who had abortions, telling of their relationships with abusive and drug-addicted partners or how they felt their potential careers were threatened by unplanned pregnancies. In two other stories, women received abortions outside of Arizona because of medical worries about their fetuses, including one who drove to Anaheim, California, for the procedure during a time in 2022 when abortion clinics in Arizona chose to close temporarily given the potential risk of prison time.

The stories help show that "reproductive decisions are immensely personal, private, and consequential," the brief states.

Christian Slater, Hobbs' spokesman, told The Arizona Republic that the women "verified under penalty of perjury that their story is true and correct."

Underway: Arizona abortion rights advocates launch signature-gathering effort for ballot measure

Hobbs also referred in the brief to the possibility that Arizona voters may get to decide whether abortion should stay legal with a planned 2024 ballot measure she helped launch in August.

She angered anti-abortion conservatives in June with an executive order that stripped the state's county attorneys of the ability to prosecute abortion cases and handed that power to Mayes, who has vowed not to prosecute such cases.

Abortion foes ready for challenge

Arizona anti-abortion activists including Cathi Herrod of the conservative lobby group Center for Arizona Rights hope to see the state Supreme Court rule in their favor. If it doesn't, McGrane and Hazelrigg could take their appeal to the U.S. Supreme Court.

Jake Warner, senior counsel with Alliance Defending Freedom, noted that the state's abortion ban has been repeatedly supported by the people of Arizona and their elected representatives. The mandatory-prison law was codified in a slightly different form in 1901 and "reenacted" in 1977 by the state Legislature, he said, although Roe v. Wade still stopped it from taking effect in the latter example.

The new 15-week abortion law, which expressly states it doesn't override the pre-statehood law, "reaffirmed" the ban, he said.

"Now that the issue of abortion has been returned to the people and their representatives, Arizona can ensure that all human life is protected under the law," Warner said.

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

This article originally appeared on Arizona Republic: Hobbs legal brief backs Planned Parenthood, opposes 1864 abortion ban