AG ‘Nunchucks’ Wants To Revive A Zombie Abortion Law From Territorial Days

Our partisan hack attorney general Mark Brnovich aka “Nunchucks” (or is it numbnuts?) has been out of control lately because he is desperate, he sees his Senate campaign going down the tubes and he will do anything for the attention of the GQP crazy base in the primary.

Earlier this month, Brnovich, lagging in the polls, begs Ducey to declare an ‘invasion’ to militarize the border:

Arizona Attorney General Mark Brnovich is asking Gov. Doug Ducey to declare an “invasion” at the state’s southern border to invoke war powers and send the state’s National Guard troops to fight cartels and human smugglers, an idea that rests on a legal theory constitutional scholars say is “destructive and radical.”

Brnovich’s letter to Ducey comes nearly five months after he issued a legal opinion declaring that the state had the constitutional authority to effectively declare war on Mexican cartels and gangs. [WRONG! Only the fderalfgovernment has thepower to dclare war.] In that opinion, Brnovich wrote that the state is being “actually invaded” by drug cartels, gangs and human-smuggling operations. And even though they aren’t an invading foreign power, he said they satisfy the constitutional definition of an invasion and clear the way for Ducey to authorize military action at the border. [This is unconstitutional.]

Brnovich’s legal theory is untested, but constitutional experts say it is unfounded and dangerous. Temple University law professor Craig Green, an expert in constitutional law and American legal history, called it “one of the most dramatic claims for state’s rights since the Civil War” and said it “threatens very basic principles of federal constitutional law.”

In his July 6 letter to Ducey, Brnovich wrote that “we have every indication that the border crisis will continue to escalate,” and that the governor must declare there is an “invasion” along the border to authorize further action.

[B]rnovich’s letter to Ducey comes at a crucial juncture for his political future. The same day he sent the letter, early ballots were sent to voters who will decide whether Brnovich will be the GOP nominee for the U.S. Senate this year.

Although Brnovich began the campaign with an advantage among Republican voters, his campaign has struggled in recent weeks. Last month, former President Donald Trump endorsed Blake Masters in the contest, and recent polling shows Masters has catapulted past Brnovich and into the lead.

After that endorsement, Trump’s campaign sent Brnovich a cease-and-desist letterdemanding he stop invoking the former president’s name in campaign literature and fundraising solicitations.

When he is not trying to start a war with Mexico our corrupt attorney general is waging a war against Arizona’s Ob/Gyn doctors in an indirect assault on Arizona’s women and girls. Brnovich asks judge for power to criminally charge abortion doctors:

Arizona Attorney General Mark Brnovich is asking a Pima County judge to immediately restore his power and the power of local prosecutors to bring criminal charges against doctors who perform abortions.

In legal papers filed Wednesday, Brnovich argues that the only reason the Arizona Court of Appeals enjoined enforcement of the state’s anti-abortion law was the 1973 U.S. Supreme Court ruling in Roe v. Wade. That historic decision and a follow-up ruling in a 1992 case called Casey v. Planned Parenthood declared that women have a constitutional right to terminate a pregnancy prior to viability of the fetus.

But those decisions were overruled by the justices late last month in the case involving the validity of a Mississippi law, Brnovich said.

“The U.S. Supreme Court held that the Constitution does not confer a right to abortion,’’ the Republican attorney general said.

“The (Arizona) law has now returned to what it was prior to Roe,’’ Brnovich said.

The only thing blocking that, he said, is the injunction that he now wants dissolved.

Not the only thing. As I have said before, a critical question, which the Court should demand an answer to, is “was anyone still being prosecuted under ARS 13-3603 by 1973?” Or had state and county attorneys abandoned prosecutions under this antiquated territorial statute as out of date with modern societal norms at the time? If so, the law has been dormant for an additional 49 years, which weighs heavily in favor of finding that this antiquated law is dead letter law and is unenforceable.

Timing, opposition questions

Brnovich has asked for oral arguments allowing his staff members to make their case directly to Superior Court Judge Kellie Johnson. No date has been set for arguments.

There’s also the question of opposition.

The original injunction was obtained by Planned Parenthood Center of Tucson, an organization that no longer exists.

But Planned Parenthood Arizona will file a response to “explain to the court why it should deny the attorney general’s latest attempt to play politics with people’s lives,” its president, Brittany Fonteno, said Wednesday.

“Attorney General Brnovich has proven once again that he is out of touch with the majority of Arizonans who support safe and legal abortion,’’ she said in a written statement.

And Gail Deady, an attorney with the Center for Reproductive Rights, which represents doctors and others in abortion issues, called it “outrageous that Arizona’s attorney general is trying to revive this zombie law that has been blocked.’’

“Arizonans’ personal health decisions, lives and future should not be dictated by a century-old [actually 158 year-old], draconian law,’’ Deady said in a prepared statement, saying her organization “will continue to stand by Arizonans’ fundamental right to access essential healthcare.’’

Only Pima County at stake?

There’s another legal issue.

Brnovich contends the injunction covers only the ability of his office and Pima County prosecutors to enforce the abortion ban that dates as far back as 1901 — and only in Pima County.

WRONG. Actually, this 1901 law was a recodification of an 1864 Civil War era territorial law from the 1st Arizona Territorial Legislative Assembly. Arizona’s first ban on abortion was passed as part of the 1864 Howell Code, a year after the formation of the Arizona Territory (Arizona did not become a state until 1912).

He asserts the old pre-Roe law is now in effect in the other 14 counties and prosecutors are free to bring criminal charges against doctors who violate it.

That issue, however, has never been litigated. And it may not be for some time, as Planned Parenthood and other key abortion providers have halted performing the procedure until the state of the law is clarified.

So Brnovich is actully asking for an advisory opinion, something the courts are not permitted to do. There is presently no actual case or controversy before the court.

Brnovich, in his new legal filing, said there’s nothing unclear about the law — and the desire of state lawmakers to outlaw all abortions.

“The Arizona Legislature has never acquiesced in the conclusion that the former (pre-1973 law) is unconstitutional,’’ he wrote. “Rather, in anticipation that the U.S. Supreme Court could overturn Roe, the Legislature has repeatedly preserved Arizona’s statutory prohibition on performing abortions except to save the life of the mother.”

For example, Brnovich noted, lawmakers recodified the exact same 1901 statute just four years after Roe, preserving the same language but just changing the statute number.

And then there was a vote earlier this year by the Republican-controlled Legislature to ban abortions after 15 weeks, something he said lawmakers did “when it was uncertain how the Supreme Court would rule’’ in the Mississippi case. But Brnovich pointed out even that measure spelled out it did not repeal or overrule the law that was in effect when Roe was decided.

All of that, he said, requires the trial judge to issue an order reopening the case and dissolving the injunction.

Background of the case

The case dates back to 1971 when Planned Parenthood Center of Tucson, 10 doctors and an anonymous pregnant woman who sought an abortion filed suit.

In the original paperwork, the plaintiffs sought to enjoin the state from enforcing the law, alleging that “except for the risk of criminal prosecution’’ Planned Parenthood would refer some of its clients to physicians to perform the procedure. The lawsuit acknowledged that “the procedures were not necessary to save the lives of such pregnant women.’’

Pima County Superior Court Judge Jack Marks agreed with the challengers.

“A fetus is not a person entitled to Fourteenth Amendment (equal protection) rights and does not have constitutionally protected rights,’’ he wrote. The judge also said the state’s ban “is overbroad and violates the fundamental rights of marital and sexual privacy of women.’’

The Court of Appeals initially overturned his ruling, saying, among other things, that the fact the law does not have exceptions for rape or incest does not make it overly broad. The judges also rejected arguments the law interferes with the right of religious freedom or discriminates against poor women.

But the court reversed its position in 1973, after the U.S. Supreme Court decision, with the judges saying they were bound by the Roe ruling.

So instead of bringing a current case against an Ob/Gyn doctor, Brnovich is trying to reopen a dormant case from half a century ago (in which all of the original litigants, lawyers and judges may be deceased by now, who knows) relying solely on the activist radical Republican Supreme Court ruling in Dobbs v. Jackson Woen’s Health Organization.

Technically what he is attempting to do would only restore the original Court of Appeals decision, which could be appealed further to the Arizona Supreme Court. But like I said, all of the original litigants, lawyers and judges may be deceased by now, who knows. Who would bring the appeal?  This is wholly inappropriate.

The court should rule that it does not give advisory opinions, and if the Attorney General wants “clarfiication” of the law he will have to bring an actual case and controversy under the most recent law passed by the Arizona legislature when it becomes effective later this year.

AFTER the Republican primary election. Ah, so sad for you “Nunchucks.”

They should be coming after your law license next for your abuse of the powers of your office in bringing politically motivated lawsuits during your tenure, and your abject failure to investigate and prosecute the seditious Coup Plotters and fake GQP electors in a coverup by your office of the culture of corruption within the Arizona GQP.