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'Doesn't make sense': Legal expert questions ruling that revived Arizona's 158-year-old abortion ban

ASU's Paul Bender says Arizona now has 2 abortion bans on the books, with no certainty about which one is the law. Gov. Ducey appears to agree.

PHOENIX — A court ruling allowing Arizona's 158-year-old abortion ban to take effect has only created more confusion about restrictions on women's reproductive rights, according to a leading expert on constitutional law.

"I really want to stress that this is not clear," said Paul Bender, a law professor at Arizona State University who has taught U.S. and Arizona constitutional law for many years.  

"I have my view. I think it's right. But I can understand the other view. And anybody who tells you it's absolutely certain, I don't think he's telling the truth."

With that caveat, Bender offered his view: Pima County Superior Court Judge Kellie Johnson reached the wrong conclusion. 

"Would we really want a statute passed more than 100 years ago to be the current Arizona statute on abortion?" Bender said in an interview for this weekend's "Sunday Square Off."

"Would anybody want that? That doesn't make any sense." 

PREVIOUS COVERAGE: 'Outraged and devastated': Arizona officials react to judge's ruling on near-total abortion ban

The Arizona ban was first enacted in 1864 - a year after Arizona became a U.S. territory - and then re-enacted several times over the next 100-plus years, most recently in 1977.

The only exception to the ban is an abortion performed to save the mother's life. Doctors could face from two to five years in prison if convicted. 

Johnson's decision was straightforward: Now that the U.S. Supreme Court has struck down a woman's right to an abortion, the Arizona law is in force.

2 abortion bans now on the books

Here's why the situation is confusing: There are now two abortion bans on Arizona's books - the blanket ban and a new abortion ban after 15-weeks of pregnancy, which took effect Saturday, the day after Johnson's ruling. Neither law has an exception for rape or incest.

"You have two statutes, which say different things," Bender said. "Ordinarily, the one that prevails is the most recent one. 

"I think that's what should happen in this case, both because it's the ordinary legal rule - that is, the most recent one - and also because it makes sense."

Judge didn't resolve the issue

In her ruling, Johnson didn't take into account the 15-week abortion restriction. She said that was beyond the scope of the legal question she was asked to answer by Republican Attorney General Mark Brnovich. 

Brnovich asked the court to lift a 49-year-old injunction that barred Arizona from enforcing its abortion ban after the U.S. Supreme Court's Roe vs. Wade decision affirmed a constitutional right to abortion. Last June, the high court struck down Roe vs Wade, and let states craft their own abortion laws.

Attorneys for Planned Parenthood of Arizona had asked Johnson to "harmonize" abortion restrictions enacted over the last 49 years with the Civil War-era ban.

Johnson said that wasn't her job. 

"While there may be legal questions the parties seek to resolve regarding Arizona statutes on abortion," Johnson wrote, "those questions are not for this court to decide here."

Gov. Doug Ducey, a staunch abortion opponent, has maintained for several months that the 15-week ban passed by the Legislature last spring is the law of the land, though he has never explained why.

Bender: Ducey appears to agree

After Friday's ruling, Ducey's spokesman texted a cryptic response:

"Governor Ducey was proud to sign SB 1164 (the 15-week abortion ban), which goes into effect tomorrow. Arizona remains one of the most pro-life states in the country."

Bender took that to mean Ducey agreed that there were two laws on the books.

"I don't always agree with him on legal matters. But this is one in which I do agree with him," Bender said. 

"He's a very sensible guy... He's saying, 'How in the world could abortion in Arizona be ruled by a Legislature that was in effect before we were even a state over 100 years ago?'"

Ducey's spokesman declined to elaborate on the text message.

What happens next:

Planned Parenthood of Arizona has indicated it will appeal the judge's ruling. The likelihood of success appears to be low. The seven-member Arizona Supreme Court, with five Ducey appointees, would have the final say on an appeal.

Invite a court case?

Bender suggested that Planned Parenthood should invite a court case to clarify the law, by having a provider perform an abortion before the 15th week of a woman's pregnancy.

"It's an open question that has to be decided in court," Bender said. 

"People need to stand up for what the Constitution provides. I understand it's a risk. People take risks to defend constitutional rights all the time."

RELATED: How the issue of abortion could shape the race for Arizona governor

Which law would Mitchell enforce?

As of Sunday night, Maricopa County Attorney Rachel Mitchell still hadn't responded to the ruling. 

Which abortion law would she enforce?

Mitchell leads the third-largest prosecutorial agency in the country. County prosecutors in Arizona would be the ones filing charges if there were arrests for illegal abortions. 

Mitchell, a former sex crimes prosecutor, has said twice in the last five months on "Sunday Square Off" that she wouldn't prosecute abortions that resulted from rape or incest.

The women, she said, "have been victimized enough."

Abortion judge could get a promotion

The same day she released her ruling, Johnson was listed as a finalist for a seat on the Arizona Court of Appeals. 

Gov. Doug Ducey's general counsel, Anni Foster, was also selected as a finalist for an appellate judgeship. Foster has worked under Ducey for all of his eight years in office. She had unsuccessfully sought an appointment as Maricopa County attorney last spring.

Also named a finalist for the state Appeals Court: Maricopa County Superior Court Judge Christopher Coury, who angered K-12 education supporters with a snarky ruling in 2020 that briefly removed Proposition 208  from the November ballot that year.

Ducey's allies have applauded the governor's strategic approach to appointing more conservatives to Arizona's courts, starting with his expansion of the Arizona Supreme Court from five seats to seven.

Sunday Square Off

See the latest segments from the 12News politics show "Sunday Square Off" on our YouTube playlist here.

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