PHOENIX — A Pima County judge won't halt implementation of her ruling that a territorial-era law outlawing virtually all abortions is once again enforceable.
In an order late Friday. Judge Kellie Johnson said Planned Parenthood Arizona had not shown it was likely to succeed when it appeals her week-old ruling. And she said challenges also failed to meet other legal standards for staying a court order while an appeal is pending.
Johnson also dismissed claims by attorney Andrew Gaona that she needed to resolve what he said are conflict between the old law and SB 1164.
That statute, which took effect on Sept. 24, also outlaws abortions except to save the life of the mother, with no exceptions for rape or incest. But there is a significant difference: The new law applies only in cases beyond the 15th week of pregnancy; the old law starts at the point of conception.
Nor did she accept Gaona’s claim that delaying her order was necessary to avoid hardships for doctors and others. Johnson said it’s not that simple.
“In considering the hardships involved, the court must necessarily consider the hardships to all parties and non-parties affected by the court's analysis,” the judge wrote.
She did not expand on that. But Attorney General Mark Brnovich, who went to court to get the old law revived, had argued that the judge needs to consider the fact that staying her order and allowing abortions through the 15th week of pregnancy could mean harm to others.
“Abortion is permanent and results in the termination of an unborn life,” the attorney general argued.
And there's something else.
Johnson said if Planned Parenthood does not believe the old law is not legally enforceable, it has other legal options, including filing a separate lawsuit.
The judge also rejected arguments by Pima County Attorney Laura Conover that she should stay the order because it creates hardships for her as a prosecutor.
Conover, like Gaona, cited the conflicts between the two laws. But Johnson said nothing in her ruling requires Conover to actually charge anyone with anything, including the old law.
That law, which traces it roots back to 1864, makes it a crime to perform an abortion, with a mandatory penalty of from two to five years in state prison.
Its enforcement was blocked by the state Court of Appeals in 1973 after the U.S. Supreme Court ruled in Roe v. Wade that women have a constitutional right to terminate a pregnancy.
All that changed in June when the justices overturned that decision.
That left states free to have their own restrictions. And Brnovich, pointing out the law had never been repealed, then got Johnson to dissolve the state court injunction and rule the old law was once again enforceable.
What complicated matters is that lawmakers earlier this year, approved the 15 week ban. It was modeled after a Mississippi law that was on review by the Supreme Court.
Supporters said the idea was to have a version on the books in Arizona if the justices upheld that law.
But the situation became muddled when the justices went a step farther, overturning Roe.
Planned Parenthood and Conover told Johnson she needed to consider whether the newer law effectively repealed the older one. And Gaona pointed out that even Gov. Doug Ducey said the 15-week law which he signed supersedes the older law.
Johnson, however, said it wasn't her job to “harmonize” the laws, ruling for Brnovich, saying the old law is, in fact, now enforceable.
That led to bids by Planned Parenthood and Conover to get her to stay her order — and allow abortions to remain legal — while they appeal. Johnson rejected that in her Friday order.