Arizona Supreme Court upholds 1864 law, a near-total abortion ban

Arizona’s Supreme Court has effectively reinstated an 1864 law banning nearly all abortions in the state, by a 4-2 vote. In a landmark decision, the state was given the go-ahead to begin enforcing the old law. The sole exception is to save the mother’s life.

“The Tuesday decision threw out an earlier lower court decision that concluded doctors couldn’t be charged for performing abortions in the first 15 weeks of pregnancy,” per The Associated Press.

But as the The New York Times reported, while the law is enforceable, the Arizona Supreme Court put the decision on hold so that a lower court could hear challenges to the law’s constitutionality. “Abortion providers said they expected to continue performing abortions through May as their lawyers and Democratic lawmakers searched for new legal arguments and additional tactics to delay the ruling.”

While conservatives hail the decision, Arizona’s Democrat Attorney General Kris Mayes told reporters she will not enforce the law. “Let me be completely clear, as long as I am attorney general, no woman or doctor will be prosecuted under this draconian law in this state,” Mayes said in a statement.

Arizona Gov. Katie Hobbs, also a Democrat, expressed hope that the GOP-controlled Legislature will repeal the 1864 law.

The court battle

After the U.S. Supreme Court’s Roe v. Wade decision in 1973, enforcement of the old Arizona law was blocked by a Tucson court. When the nation’s highest court overturned Roe in June 2022, Arizona’s attorney general at the time, Mark Brnovich, a Republican, asked a state judge to remove the injunction and allow the 1864 law to be enforced. The issue then wound its way up to Arizona’s high court.

NBC reported that the “Civil War-era law — enacted a half-century before Arizona even gained statehood — was never repealed and an appellate court ruled last year that it could remain on the books as long as it was ‘harmonized’ with a 2022 law, leading to substantial confusion in Arizona regarding exactly when during a pregnancy abortion was outlawed.”

The state has been operating under a ban on abortion after 15 weeks gestation.

The 1864 law

As the Times explained, “The territorial-era ban was never repealed. And the Arizona Supreme Court said Arizona’s Legislature had not created a right to abortion when it passed the 15-week ban. Because the federal right to abortion in Roe v. Wade had now been overturned, nothing in federal or state law prevented Arizona from enforcing the near-total ban, the court wrote.”

Planned Parenthood doctors told the media that criminal penalties will likely only apply to doctors.

While not saying it explicitly, the Arizona Supreme Court seemed to agree. In this week’s ruling, the court found that “in light of this opinion, physicians are now on notice that all abortions, except those necessary to save a woman’s life, are illegal.” And per AP, “The justices noted additional criminal and regulatory sanctions may apply to abortions performed after 15 weeks of pregnancy.”

Jake Warner, of the Alliance Defending Freedom, a conservative Christian advocacy group that argued for reinstatement of the law, said at a news conference that “he believed county prosecutors had the authority ‘to enforce the law as written, and so protect unborn life here in Arizona,’” as reported by the Times.

According to The Washington Post, in an October New York Times-Siena College poll, 59% of Arizona registered voters said abortion should be mostly or always legal; 34% said it should be mostly or always illegal. The article quoted findings from a March Fox News poll in which 39% of Arizona voters said abortion would be “extremely important” in deciding their vote for president, while 32% called abortion “very important” as they vote. “Voters who supported Biden in 2020 were nearly twice as likely to say the issue would be extremely important in their vote, 51% to 27%, the Post reported.

Kari Lake, a Republican who lost her bid for Arizona governor to Hobbs, and is now running for the Senate, on Tuesday asked the state legislature and Hobbs “to come up with an immediate common sense solution that Arizonans can support.” She had previously been an outspoken critic of abortion, but recently moderated her stance, the Post reported.

Like former President Donald Trump, with whom she’s been closely allied, Lake has recently said that abortion should be a state-by-state decision, not a federal one.