Brnovich, abortion advocates want special session of Legislature to address abortion laws

Ray Stern
Arizona Republic

Arizona Attorney General Mark Brnovich and advocates for legal abortions are in agreement: They both want the Legislature to hold a special session to address abortion laws.

Their reasons are much different, however.

And despite the similar request from those on different sides of the issue — Brnovich is a vocal opponent of abortion — it's not likely to happen soon, according to House Speaker Rusty Bowers, R-Mesa.

More than two dozen liberal groups sent a letter to Gov. Doug Ducey this week asking for a special session to repeal the state's 19th century near-total abortion ban.

The same day, Brnovich's office sent Ducey a letter asking for a special session to give "clarity" to two abortion laws now in effect: the 1864 law that mandates prison time for abortion providers, and a law that went into effect Sept. 24 that bans abortions after 15 weeks of pregnancy. Both laws have an exception to save the life of the mother.

Ducey told a reporter in April that the 15-week ban he signed would take precedence over the pre-statehood law, but hasn't provided any further clarification on the statement.

Brnovich's letter follows his successful effort to get an injunction lifted from the pre-statehood law that was in place since the 1973 Roe v. Wade decision. Planned Parenthood Arizona and other abortion facilities have halted all abortion services because of the Sept. 23 ruling.

Bowers on Thursday said that he's "not in any mad rush" to bring lawmakers in for a special session.

Arizona Attorney General Mark Brnovich speaks to a crowd of Republican voters at the party’s primary debate for the U.S Senate in Phoenix on June 23, 2022.

"I don't see us doing any specials until after the election, at least," he said. "It's an important issue and will take some thought."

Planned Parenthood Arizona is asking Pima County Judge Kellie Johnson to put an emergency stay on her ruling, arguing that Ducey's previous statements about the 15-week law taking precedence over the pre-statehood law create confusion that need addressing.

It's that argument that spurred Brnovich's office to make the request to Ducey.

"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 by Planned Parenthood in court to undermine the State’s defense," said the Sept. 28 letter from Brnovich's office, which was signed by Solicitor General Beau Roysden.

Brnovich wants Ducey to submit an "appropriate brief ... that clearly outlines the legal position of the Governor's Office, if it no longer stands by the express legislative intent" of the 15-week ban, the letter stated.

More info:Here's what you need to know about Arizona's abortion law

The 15-week law, signed by Ducey this year, contains a provision stating that it does not repeal the pre-statehood ban.

A special session would allow lawmakers the opportunity "to give additional clarity about our abortion laws based on feedback they may be receiving from their constituents," the letter said.

Brnovich's office also submitted an 11-page motion Tuesday to Pima County Superior Court arguing against an emergency stay that would keep the injunction in place until Planned Parenthood makes a formal appeal of Johnson's ruling.

The Legislature ended its regular session on June 30.

Either Ducey or Legislature leaders could call a special session. Typically, it's only done when enough lawmakers have signaled their intent to agree to something during the special session.

Ducey's office, through a spokesman, would only comment that "we received the letter and we are reviewing it."

A decision on the emergency stay is expected as soon as Friday.

Groups want vote before Election Day

The abortion advocacy groups who wrote Ducey include the ACLU of Arizona, the state conference of the NAACP and The League of United Latin American Citizens (LULAC) of Arizona.

They want the special session to happen before the Nov. 8 election, said Eloisa Lopez, executive director of the Abortion Fund of Arizona and Pro-Choice Arizona.

"Any hesitation on the part of your office to call a special session to repeal this outdated abortion ban demonstrates a blatant disregard for the health, well-being, and liberty of people who can become pregnant and their families," their letter states.

The groups want accountability and said they can't wait any longer, Lopez said. 

"Gov. Doug Ducey is hiding in the background right now," she said. "We just need our leadership to state a clear position on what they are doing ... . The state has been unclear for months now."

If a special session were held, the organizations are aware that the Republican-dominated Legislature might not repeal the pre-statehood abortion law, Lopez said.

"This is the moment for those anti-abortion elected officials to own what they did," she said. "This could possibly hurt campaigns ... . The public is really upset knowing that abortion is not accessible right now in our state."

A special session would put elected officials and the governor on the record for the issue before voters go to the polls, she said.

Bowers said it's far from clear yet what lawmakers might actually do in a special session for abortion laws. They won't simply vote on which law is most popular and are more likely to engage "in a lot of discussion, with a lot of people weighing in," he said.

The Legislature is currently split at a razor-thin, one-vote margin in the House and Senate, so passing anything opposed by Democrats would require total Republican unity.

Yet some Republicans may split from the majority for their own reasons. Just before the current Legislative session ended in June, Rep. Jake Hoffman, R-Queen Creek, tried unsuccessfully to introduce his own abortion ban bill.

Reach the reporter at or 480-276-3237. Follow him on Twitter @raystern.