Abortion in Arizona set to be illegal in nearly all circumstances, state high court rules
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The Arizona Supreme Court on Tuesday upheld a 160-year-old law that bans abortions and punishes doctors who provide them, saying the ban that existed before Arizona became a state can be enforced going forward.
The ruling indicated the ban cannot be retroactively enforced, and the court stayed enforcement for 14 days.
But the shocking ruling quickly caused political earthquakes.
"There really is no way to sugarcoat it, today is a dark day for Arizona," said Angela Florez, president and CEO of Planned Parenthood Arizona.
The pre-statehood law mandates two to five years in prison for anyone aiding an abortion, except if the procedure is necessary to save the life of the mother. A law from the same era requiring at least a year in prison for a woman seeking an abortion was repealed in 2021.
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Enforcement of the ban could mean the end of legal abortions in Arizona, which reproductive rights activists warn means Arizona women can expect potential health complications.
In the wake of the ruling, some providers said they will continue offering abortions up to 15 weeks of pregnancy at least for a time — likely through May — because of an existing court ruling in another case. And, abortion rights advocates see a backstop in the state's top Democrats, who have taken steps to thwart any enforcement of the ban.
Democratic Gov. Katie Hobbs issued an executive order last year giving all power to enforce abortion laws to the state attorney general instead of county prosecutors. Attorney General Kris Mayes, also a Democrat, has vowed not to prosecute any abortion case, and she reaffirmed that position Tuesday.
“No woman or doctor will be prosecuted under this law as long as I am attorney general," Mayes said. "Not by me, nor by any county attorney serving in our state, not on my watch.”
Mayes and Hobbs' stance relies on an untested legal argument, and could be challenged by one of the state's county attorneys.
'Abortions ... are illegal,' court says
The decision was 4-2, with Justices John R. Lopez IV, Clint Bolick, James P. Beene and Kathryn H. King in the majority. Lopez wrote the majority opinion, while Vice Chief Justice Ann A. Scott Timmer penned a dissent. Chief Justice Robert M. Brutinel joined Timmer. The court's seventh justice, William G. Montgomery, recused himself from the case.
All of Arizona's justices were appointed by Republican governors.
"Physicians are now on notice that all abortions, except those necessary to save a woman’s life, are illegal ... and that additional criminal and regulatory sanctions may apply to abortions performed after fifteen weeks’ gestation," the ruling reads.
The majority ruled that a law passed by the Arizona Legislature in 2022, which prohibited abortions after 15 weeks, did not repeal the pre-statehood law nor create a right to abortion. The majority relied on language in the bill that enacted that law, which said it did not "repeal, by implication or otherwise" the pre-statehood ban.
The court concluded "the legislature made its intent known," in part through "an unwavering intent since 1864 to proscribe elective abortions." And the court said the overturning of Roe v. Wade, which left no constitutional right to an abortion, made Arizona's ban enforceable.
"The legislature has demonstrated its consistent design to restrict elective abortion to the degree permitted" prior to Roe being overturned, the opinion says.
“Life is a human right, and today’s decision allows the state to respect that right and fully protect life again — just as the Legislature intended,” said Alliance Defending Freedom senior counsel Jake Warner, who argued the case before the court in favor of the pre-statehood ban.
Timmer, in her dissent, wrote that the 2022 law prohibiting most abortions after 15 weeks was meant to create an exception to the pre-statehood law and was not contingent on Roe v. Wade.
She objected to the majority using the bill language to interpret the Legislature's intent, saying she would not "engage in the guesswork" they did and that it was "implausible to conclude the legislature planted within the (bill) a bombshell of reverting to a near–total ban on abortion."
"The statute says what it means and means what it says: The state will prosecute physicians for performing abortions after the fetus reaches fifteen weeks in age unless a medical emergency requires the procedure. The state will not prosecute physicians for performing abortions before the fetus reaches fifteen weeks in age. These abortions are lawful. There is no room for misunderstanding."
One effect of the ruling could be more support for a ballot measure in the works for this year to put abortion access into the Arizona Constitution. Advocates say they've already got more than 500,000 signatures, well above the threshold of 383,923 signatures needed by an early July deadline.
“We were expecting the worst and hoping for the best, but we have to keep moving forward," said Chris Love, a spokesperson for the ballot measure known as Arizona for Abortion Access. "We have an opportunity to change things at the ballot in November.”
The state Supreme Court's ruling puts a stark choice before voters: Choose the new reproductive rights measure or watch abortion policy turn back to the 19th century.
That black-and-white choice, as well as an anticipated increase in turnout by Democrats because of the ballot measure, could also affect races in the state Legislature or other offices.
Hobbs said Tuesday the ruling left Arizona with "one of the most extreme abortion bans in the country,” and she called on the GOP-led Legislature to immediately repeal the 1864 ban.
“The Republicans at the Legislature have time and again refused to act to protect our freedoms,” Hobbs said, as she stood with more than a dozen Democratic lawmakers. Hobbs had pledged to spend six figures to unseat those Republican lawmakers, who are all on the ballot this year.
When does the ruling go into effect?
The highly anticipated ruling came as a shock to many abortion rights advocates in a state where abortion access has been uncertain ever since the U.S. Supreme Court overturned Roe v. Wade, and abortion rights, in 2022. Because of Arizona's two laws, clinics provided abortions off and on for a time, subject to the decisions of courts along the way.
A new element of uncertainty emerged Tuesday even after the ruling from the state's top court, as various involved groups offered differing timelines for when enforcement could begin.
Warner said he believed county attorneys could pursue cases when the court's stay expires in 14 days.
But Planned Parenthood Arizona and the American Civil Liberties Union of Arizona said the law cannot be enforced for 45 days after the court issues a final mandate, which has not yet happened. That view was also shared by some abortion opponents, including GOP legislative leaders and the Center for Arizona Policy, who said they believe enforcement cannot occur until later.
That's because of a separate court decision from Maricopa County, in which the state's former attorney general, Republican Mark Brnovich, agreed not to enforce the 1864 law until 45 days after the current case had been resolved. That agreement came in October 2022.
Cathi Herrod, president of the conservative Center for Arizona Policy, praised the court's decision.
"The Arizona Supreme Court reached the appropriate legal conclusion," she said in a statement. "Today’s outcome acknowledges the sanctity of all human life and spares women the physical and emotional harms of abortion. ... Today’s decision preserves a system designed to be blind to all but the law, and in doing so, it upholds the right of life for all Arizonans."
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US Supreme Court ruling paved way for return of 1864 law
The abortion ban first codified in Arizona law in 1864 has been sitting on the books for 160 years.
First appearing in the 1864 Howell Code, a book of laws compiled by Arizona's First Territorial Legislature, the state's abortion ban was similar to those in many states. It was enforced vigorously in Arizona until the Roe v. Wade decision in 1973.
In 1971, Planned Parenthood of Tucson sued the state to overturn the old ban. The group lost the case in 1973 when the state Court of Appeals ruled against it. But the U.S. Supreme Court issued its historic Roe v. Wade decision the same year, causing the state Court of Appeals to issue an injunction against the pre-statehood ban.
For almost 50 years, legal abortions were considered a fact of American life, until the Dobbs v. Jackson Women's Health Organization ruling in June 2022 that removed the Roe protections.
The ruling by the new, more conservative U.S. Supreme Court spurred Arizona Republican politicians to ask the courts to lift the injunction from 1973 and allow police and prosecutors to enforce the 1864 law. The new court action had the effect of renewing Planned Parenthood's 1971 legal fight.
The Arizona Supreme Court recognized all that was unsettled in implementing its 14-day stay before the 1864 law can be enforced. That window allows any legal challenges that were started in 1971, but essentially put on hold because of Roe v. Wade, to be pursued again now, over 50 years later.
Mayes said her office was weighing its response. The state's top court sent the case back to the original Superior Court, in Pima County, to consider the possibility of further action.
“My office is, as we speak, discussing what our next steps are, whether that is appealing this decision to the United States Supreme Court, whether that is taking ... the constitutional questions that remain, back down to the Superior Court," Mayes said.
Republic reporters Mary Jo Pitzl, Reagan Priest and Stephanie Innes contributed to this article.
Reach reporter Stacey Barchenger at stacey.barchenger@arizonarepublic.com or 480-416-5669. Reach the reporter at rstern@arizonarepublic.com or 480-276-3237. Follow him on X @raystern.
This article originally appeared on Arizona Republic: Arizona abortion law: State Supreme Court upholds near-total ban
