Arizona top court upholds 1864 near total abortion ban

The top court in Arizona on Tuesday ruled a 160-year-old near total ban on abortion is enforceable, thrusting the issue to the top of the agenda in a key US presidential election swing state.

The ruling -- allowing for doctors to be jailed for up to five years -- is the latest in a series of state-level measures on the deeply divisive issue of reproductive rights, which is expected to play an outsize role in this November's contest between President Joe Biden and his Republican challenger Donald Trump.

In a statement issued almost immediately after the Arizona news broke, Biden slammed the "cruel ban."

"This ruling is a result of the extreme agenda of Republican elected officials who are committed to ripping away women’s freedom," he said.

Citing the US Supreme Court's 2022 ruling that ended a nationwide guarantee of abortion access and instead allowed states to set their own rules, Arizona's top court said a local law dating from the US Civil War era could stand.

Arizona was a territory, not a state, in 1864 when original legislation was drafted banning all abortions except those performed to save the life of the woman -- and imposing up to five years' prison for anyone carrying out the procedure.

In its Tuesday ruling the state's supreme court said the legislature had never explicitly encoded a right to abortion in local law, and the right had only existed because of now-removed federal rules.

"The legislature has demonstrated its consistent design to restrict elective abortion... and an unwavering intent since 1864 to proscribe elective abortions," the ruling said.

"To date, our legislature has never affirmatively created a right to, or independently authorized, elective abortion."

In practice, Arizona has permitted abortions up to the 15th week of pregnancy.

- 'Affront to freedom' -

The ruling included a 14-day stay on enforcement to allow for legal challenges.

Beyond the stay, its fate is far from clear: Attorney General Kris Mayes, a Democrat, has vowed she will not enforce a ruling she called an "unconscionable... affront to freedom."

"Today's decision to reimpose a law from a time when Arizona wasn't a state, the Civil War was raging, and women couldn't even vote will go down in history as a stain on our state," she said.

"And 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."

The right to choose is supported by a clear majority of Americans, and is a huge animating issue at the voting booth, across a broad spectrum of the population.

Tuesday's ruling looks set to drive support for a local ballot initiative in Arizona this November that would see abortion enshrined as a constitutional right in the state.

Similar measures in other US states -- even much more conservative ones like Kansas -- have passed and Democrats believe abortion initiatives on the ballot in November will help drive turnout for Biden.

Arizona's ruling comes the day after de facto Republican presidential candidate Trump said he favored letting states decide their own rules on abortion.

Trumpeting his role in the US Supreme Court's decision to overturn Roe vs Wade -- the half-century-old framework that established a national right to reproductive freedom -- Trump said Americans were happy with the way US law now stood.

"My view is now that we have abortion where everybody wanted it from a legal standpoint, the states will determine by vote or legislation or perhaps both," the Republican said in a video posted on his Truth Social network.

"And whatever they decide must be the law of the land, in this case, the law of the state."

Biden has said that if he is reelected and Democrats regain full control of Congress he will push for federal abortion rights to become law again.

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