Strange bedfellows: Brnovich and Dems both want Ducey to call a special session to resolve abortion law confusion

By: - September 29, 2022 7:08 am
Doug Ducey

Gov. Doug Ducey has said a new 15-week abortion ban is the controlling abortion law in Arizona, even though a judge ruled last week that a near-total abortion ban written in 1864 is the law of the land. Democrats, community groups and AG Mark Brnovich's office want a special legislative session to end the confusion. Photo by Rob Schumacher/The Arizona Republic/USA Today Network | Pool photo

The head of the Arizona Democratic Party and a coalition of liberal community organizations are asking Gov. Doug Ducey to call a special legislative session to eliminate confusion over Arizona’s abortion laws, and they have an unexpected ally — the office of Republican Attorney General Mark Brnovich.

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Ducey has repeatedly stated that a 15-week abortion ban he signed this year supersedes a total ban written in 1864. 

But a judge last week ruled that the Civil War-era ban, which had been blocked for the last 49 years because of Roe v. Wade, is once again law in Arizona. Abortion proponents, including Planned Parenthood of Arizona, which argued against removing the injunction, have said the two laws create confusion for providers and women in the state.

AZ abortion ban: What we didn’t know about labor and birth in 1864

Arizona Democratic Party Chairwoman Raquel Terán said Tuesday if the governor believes the 15-week abortion ban is in fact enforceable, he should summon lawmakers to the Capitol for a special session to repeal the 1864 law to ensure there is no confusion. 

On Wednesday, Brnovich’s office said Ducey’s statements about the 15-week ban being the state’s chief abortion restriction are creating confusion and giving legal ammunition to opponents of the total ban — and it joined the call for Ducey to call a special session to resolve the confusion.

“(We) request that you call a special session of the Arizona Legislature so that legislators may have an opportunity to give additional clarity about our abortion laws based on feedback they may be receiving from their constituents,” Solicitor General Beau Roysden wrote in a letter sent to the Anni Foster, Ducey’s top attorney.

Currently, the stances of the attorney general and governor’s offices are at odds. Roysden writes that assertions from Ducey that the 15-week ban should take precedence over the 1864 law are being used against the state in court by Planned Parenthood of Arizona. 

“It is the position of our office that after Friday’s ruling from the Superior Court, (the 1864 ban) is now in effect statewide. However, the Governor’s office has not taken a clear legal position on the current state of the law in Arizona, and comments from the Governor are being cited in court to undermine the State’s defense of (the 1864 ban),” he wrote. 

Roysden noted that language in the 15-week ban expressly states that it doesn’t create a right to abortion or repeal the 1864 law — a provision the judge cited when reinstating the territorial-era law — and requested that the governor’s office issue a brief outlining Ducey’s exact legal position.. 

C.J. Karamargin, the governor’s spokesperson, said the office was still in the process of reviewing the letter. Karamargin said Ducey’s position that the 15-week law is currently in effect remains intact. 

At a Tuesday press conference, Terán said that, although she opposes the 15-week ban — she voted against it this year as a state senator — it was preferable to the 158-year-old law that criminalizes nearly every abortion in Arizona. 

Terán challenged Ducey to round up the Republican votes to support the 15-week-ban, saying Democrats stand ready to repeal the 1864 law. While every Republican legislator voted to pass the 15-week law earlier this year, it’s likely some will prefer to keep the territorial-era ban in place. 

“What Governor Ducey can do is bring us back to the state legislature and call a special session to repeal it — if he really believes in the 15-week abortion ban,” she said. 

On Wednesday, community organizations and advocacy groups, including local abortion clincs and women’s rights groups, sent a letter to Ducey backing the demand for a special session.

“No one should be forced by the state to carry a pregnancy and face the life-altering consequences of being denied essential health care. We urge you to call a special session immediately, without hesitation, for the purposes of repealing (the 1864 law). Any hesitation on the part of your office to call a special session to repeal this outdated ban demonstrates a blatant disregard for the health, wellbeing, and liberty of people who can become pregnant and their families,” read the letter.

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Gloria Rebecca Gomez
Gloria Rebecca Gomez

Gloria Gomez joined the Arizona Mirror in August 2022. Prior to that, she wrote for the Mirror as the UA School of Journalism’s Don Bolles Fellow. She has written for the Arizona Daily Star, the Arizona Republic and worked at the Arizona Daily Wildcat. She graduated in 2022 with bachelor's degrees in journalism and political science, with a Spanish minor. She’s a member of the Investigative Reporters and Editors and National Association of Hispanic Journalists.

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