Case: Planned Parenthood Center of Tucson v. Brnovich

On July 22, 1971, the Planned Parenthood Center of Tucson filed this lawsuit to challenge Arizona's 1901 abortion ban, which criminalized all abortions unless necessary to save a pregnant person's life, with no exceptions for rape or incest. During the litigation, the United States Supreme Court decided Roe v. Wade in 1973. As a result, the Arizona Superior Court of Pima County declared the 1901 ban unconstitutional and issued an injunction.

Almost fifty years later, the United States Supreme Court overturned Roe v. Wade in Jackson Women's Health Organization v. Dobbs. As a result, the Arizona Attorney General, Mark Brnovich, requested a Motion for Relief from Judgement in order to lift the injunction. On July 20, 2022, the Planned Parenthood Center of Tucson responded, arguing that lifting the injunction would be inconsistent with the abortion regulatory scheme established by the legislature in the last 50 years. The case was assigned to Judge Kellie Johnson of the Arizona Superior Court of Pima County.

After hearing oral arguments, the Court granted the Attorney General’s Motion for Relief from Judgment on September 22, 2022, as the legal basis for the judgment entered in 1973 had been overruled in Dobbs. The Court also granted the motion to substitute Dr. Eric Hazelrigg as intervenor and guardian ad litem for unborn children in the state. 2022 WL 4487408.

In response, Planned Parenthood requested a stay on the trial court’s ruling, stating that the decision has allowed the 1901 ban to go into effect even though it conflicts with more modern regulations about abortion. As a result, Planned Parenthood argued that the trial court's decision caused confusion as to the status of abortion access in Arizona. On September 30, 2022, Judge Johnson denied this request, and Planned Parenthood appealed the decision.

On October 7, 2022, Judge Peter J. Eckerstrom of the Court of Appeals for the State of Arizona Division Two approved the Emergency Motion for Stay Pending Appeal, holding that the court has a duty to "attempt to harmonize all of this state’s relevant statutes" and that healthcare providers, prosecutors, and the public needed clarity. This effectively blocked the enforcement of the trial court’s decision to reinstate the 1901 abortion ban until the appeal was resolved, thereby allowing abortion care to resume for the time being.

Nearly two months later, on December 30, 2022, Chief Judge Garye L. Vásquez authored the opinion of the appellate court, in which Judge Peter B. Swann concurred and Judge Eckerstrom specially concurred. In that opinion, the Court of Appeals held that the abortion regulatory scheme established by the legislature in the last 50 years still governed, meaning the abortions permitted by that scheme would be deemed exceptions to the 1901 ban. This meant that Arizona's fifteen-week abortion ban was still in effect; thereby legalizing abortion in the state until fifteen weeks from the last menstrual period. The Court disagreed with the Attorney General's argument that physicians who perform abortions after fifteen weeks could still be prosecuted under the 1901 ban, concluding that such a holding would (1) ignore the unambiguous legislative intent to regulate but not eliminate elective abortions; (2) create an irreconcilable conflict between the 1901 ban and the 15-week ban by criminalizing conduct permitted by the 15-week ban; and (3) violate due process by promoting arbitrary enforcement. 

On April 9, 2024, the Supreme Court of the State of Arizona vacated the Opinion of the Court of Appeals, Division Two, concluding that the 2022 law that bans abortions after the fifteenth week did not create a right to, or otherwise provide independent statutory authority for, an abortion that repeals or restricts the 1901 ban, but rather it was predicated entirely on the existence of a federal constitutional right to an abortion since disclaimed by Dobbs. The court thus concluded that the 1901 ban was therefore enforceable as the court found no federal constitutional abortion right as well as no independent authorization for abortion. It stsayed enforcement for fourteen days. 

The court remanded the case back to the trial court so that it could consider any additional constitutional challenges and temporarily extended the existing stay against the enforcement of the 1901 ban in order to give the trial court time to determine how to proceed. 

On April 30, the Arizona Attorney General filed a motion to stay issuance of the mandate for 90 days, as to permit the Attorney General time to potentially file a petition for a writ of certiorari in the U.S. Supreme Court. 

On April 24, the House of Representatives voted to repeal the statute; the Senate did the same on May 1. That same day, Planned Parenthood filed its own motion to stay issuance of mandate until the repeal legislation took effect, which was set to occur in September once the legislative session had ended. On May 2, the Governor signed legislation repealing the 1864 ban. 

On May 13, 2024, the Court stayed the enforcement of the 1864 ban and granted the Attorney General's motion to stay the issuance for 90 days. The ban was set to go into effect on August 12, 2024. In a statement released on the same day as the Court's order, the Attorney General stated that the earliest the law could take effect was September 26, 2024, counting the 90 days granted by the Court plus 45 days stipulated in the Isaacson v. Arizona case. 

On September 12, 2024, after the legislative session has ended, the repeal legislation took place and the 1864 ban was repealed. 

On September 24, the case was remanded to the trial court, and on October 4 it was reassigned to Judge James E. Marner. As of December 20, 2024, the case is ongoing.