Recognizing the lack of harmony caused by a Pima County judge’s recent ruling, the Arizona Court of Appeals – Division Two out of Tucson issued an order Friday which at least temporarily leaves a 1973 injunction in place to prevent enforcement of an abortion ban.
The unanimous order authored by Presiding Judge Peter Eckerstrom stays, or puts on hold, a ruling Judge Kellie Johnson of the Pima County Superior Court issued last month which allowed enforcement of a law making it a felony for anyone to perform an abortion or to aid in causing a miscarriage.
Violations of the law are punishable by two to five years in prison, “unless it is necessary to save” a woman’s life. However, Eckerstrom’s order putting the law back on hold means Arizona is governed for now by legislation passed earlier this year to imposes a 15-week ban on abortions except “in a medical emergency.”
The order staying Johnson’s ruling came in response to an emergency motion filed by Planned Parenthood Arizona, Inc. after Johnson declared she would not provide judicial guidance on balancing the very old and the very new state laws addressing abortions, along with a half-dozen other laws dealing with the issue.
The confusion left in the wake of Johnson’s position is of concern to the Court of Appeals, Eckerstrom noted.
“Arizona courts have a responsibility to attempt to harmonize all of this state’s relevant statutes,” he wrote. “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.”
Judges Garye Vasquez and Peter Swann concurred in issuing the order. Swann is from the Arizona Court of Appeals -Division One- in Phoenix and is hearing the case due to a vacancy on the Division Two bench.
A telephonic conference with Eckerstrom and the parties has been scheduled for 2:30 p.m. on Oct. 11 to set a briefing schedule and to determine whether the appeal should be accelerated.
Planned Parenthood asked the Court of Appeals last week for a stay to stop Johnson’s order from taking effect, noting that the organization did so only after Johnson herself denied a similar request.
Eckerstrom’s order cites the appellate panel’s belief Planned Parenthood “demonstrated a substantial likelihood of success on the merits on its claim” that Johnson erred when she limited her analysis to the constitutional viability of the nearly 160-year-old law without considering several other abortion-related laws implemented in Arizona after the U.S. Supreme Court’s landmark 1973 decision in Roe v. Wade.
For his part, Arizona Attorney General Mark Brnovich saw nothing wrong with Johnson’s ruling lifting the injunction of the law (which underwent minor technical changes in 1901 and was reaffirmed by the Arizona Legislature in 1977 ). His office took a hands off position on pursing any clarification of how to interpret the various abortion laws on the books.
Brnovich, in his role as the state’s attorney, chose instead to leave it to other parties to ask for a higher court’s guidance. His office also argued against Planned Parenthood’s emergency motion for a stay of Johnson’s ruling.
The appellate order authored by Eckerstrom does not address any specific legal arguments made by either party, only that there was sufficient cause right now to put the injunction back in place while the Court of Appeals fully considers the positions of the parties.
Brittni Thomason, a spokesperson for Brnovich, issued a statement Friday about the stay order.
“Our office understands this is an emotional issue, and we will carefully review the court’s ruling before determining the next step,” Thomason said.
The Planned Parenthood challenge to the old abortion ban law is not the only one being heard by an Arizona court.
This week the Arizona Medical Association joined with Dr. Paul Isaacson in a lawsuit filed in Maricopa County which argues the only interpretation of the pre-statehood ban that makes sense is for it to apply only to non-medical professionals.
Planned Parenthood Sues To Stay Ruling On Arizona Abortion Law
Arizona Law Allowing Abortion Only To Protect Mother’s Health Reinstated By Pima County Judge