By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — The Alliance Defending Freedom on Tuesday urged the Arizona Supreme Court to immediately order the 1864 abortion ban law again enforceable, saying even a temporary restoration of the law legislators just repealed will save 25 “unborn children” a day.

In new legal documents, attorney Jacob Warner told justices there is no legal basis for Attorney General Kris Mayes to ask for more time before the court’s April 9 decision reinstating the territorial-era law that outlaws abortions except to save the life of the mother. Mayes said she wants to study whether to seek review by the U.S. Supreme Court.

“But any appeal is futile,” said Warner, whose organization won the lawsuit on behalf of Dr. Eric Hazelrigg, medical director of Crisis Pregnancy Center who was appointed by courts to represent the interests of unborn children.

“There is no final judgment,” he said. “Nor is there a reviewable federal issue,” something that would give the nation’s high court a reason to take a look.

Warner acknowledged the Legislature last week gave final approval to repealing the old law, which was signed by Gov. Katie Hobbs. That eventually would leave in place a 15-week limit.

He also pointed out, however, the Legislature had the option of approving the measure with an “emergency clause,” something that would have allowed the repeal to take effect immediately.

“But lawmakers refused to exercise that power,” Warner wrote, meaning the repeal will take effect 91 days after the legislative session ends.

“Far from viewing the repeal as medically urgent, the legislature refused to immediately effectuate it for public health or any other reason,” he said. “That was its call to make.”

What is also true is there is no emergency clause because supporters of repeal lacked the necessary two-thirds vote in the 60 member House and 30 member Senate. Instead, the bill cleared the House on a 32-28 margin; the vote in the Senate was 16-14.

“In truth, the legislature had insufficient votes to prioritize abortion providers over unborn children for the next few months,” Warner told the court. That, he said, relates to what he said would be the effects of the court delaying enforcement of its ruling.

“Public health records show that more than 10,000 unborn Arizona children are aborted each year,” he told the justices.

“That’s over 25 abortions per day,” he said, for whatever period the old law is once again allowed to be enforced before the legislative repeal becomes effective.

Warner added that neither Mayes nor Planned Parenthood Arizona, the original plaintiff in the lawsuit, “do not mention, much less weight the threat to these lives in seeking delay.”

Warner also pointed out there was a pause in abortions in November 2022. That is after Pima County Superior Court Judge Kellie Johnson sided with then-Attorney General Mark Brnovich and concluded the decision by the U.S. Supreme Court to overturn Roe v. Wade returned the power to regulate abortions to each state.

Johnson pointed out lawmakers never repealed that 1864 law even after Roe was decided in 1973. And that, she concluded, meant it was good law.

Her decision stood for only about a week until the state Court of Appeals issued a stay. That allowed abortions, at least until 15 weeks, to resume.

That has been the case ever since.

Now the appellate court ruling has been overturned, and the only remaining question is when the old law can again take effect — for whatever period of time before the repeal becomes the law in Arizona.

Warner said neither Planned Parenthood nor Mayes presented any evidence of harm to abortion providers during that week in 2022 when the law was enjoined.

As to taking the issue to the U.S. Supreme Court, Warner said there is no legal basis.

Mayes, in seeking a delay, argued the justices here, in voting 4-2 to reinstate the old law, relied on more than the fact that Roe was overturned.

She pointed out the majority opinion cited another Arizona law. It says an unborn child at every stage of development has “all rights, privileges and immunities available to other persons, citizens and residents of this state,” subject only to federal constitutional restrictions and U.S. Supreme Court decisions.

Only thing is, Mayes said, U.S. District Court Judge Douglas Rayes in July 2022, handling another abortion case, declared that verbiage unconstitutionally vague and unenforceable.

“The Arizona Supreme Court’s decision in the 1864 case relied on a statute that a federal court has enjoined as unconstitutionally vague,” she said in a prepared statement. “This raises serious federal questions under the Due Process and Supremacy Clauses’’ of the U.S. Constitution.”

Warner told the justices all that is irrelevant to their conclusion that the old law is enforceable.

“This court’s ruling does not turn on that citation” of what Rayes ruled, he said. And Warner said even Mayes has acknowledged there may yet be other grounds to have the old law declared void.

Mayes has through Thursday to respond.