How does Arizona's 1864 abortion ban stack up against other states' restrictive laws?

Arizona has one of the most restrictive abortion laws in the nation after a state Supreme Court ruling last week allowing enforcement of a 160-year-old ban that punishes providers with prison time.

Prior to the ruling in Arizona, 14 states across the nation banned abortion at any period of pregnancy, according to the Guttmacher Institute, a policy and research organization that supports abortion rights.

Just four of those — Arkansas, Oklahoma, South Dakota and Texas — have laws similar to what will go into effect in Arizona, allowing abortions only to save the life of the mother. The other 10 states have additional exceptions to the ban such as in cases of rape or incest, according to Guttmacher.

For some, Arizona's newfound status was a win.

"A number of states have taken the steps to protect the lives of unborn children and their mothers from the harms of abortion," said Cathi Herrod, president of the Center for Arizona Policy. The center is one of the state's most prominent conservative organizations and a key advocate of abortion restrictions.

But for others, it was a giant step back that positioned swing-state Arizona on par with some of the most ruby red states in the nation.

"It is outrageous that Arizona's abortion laws are now potentially going to be aligned with deeply conservative states like Arkansas and South Dakota," said Arizona Attorney General Kris Mayes, a Democrat who has pledged her office will fight the ban and never prosecute an abortion case. "This 1864 ban does not reflect the views of the vast majority of Arizonans, and I believe voters will make that abundantly clear in November."

The Arizona court's ruling hasn't yet gone into effect, allowing abortion providers to continue offering services at least temporarily.

But abortion rights advocates and scholars say the 4-2 Arizona Supreme Court decision will have far-reaching negative effects on women's health and the uncertainty could prevent doctors from providing legal abortions. Groups backing a ballot measure seeking to put abortion rights into the Arizona Constitution in November quickly began using the restrictiveness of the ban in their appeals to voters for support.

They look to the national map, and those 14 other states with bans, as harbingers of what's to come in the Grand Canyon State.

Penalties up to 99 years

In addition to the 14 states, which are conservative politically and largely in the South, dozens of states limit abortions after a certain point in pregnancy, sometimes from as early as six weeks.

And more have bans on the books that are blocked in legal battles, according to the legal advocacy nonprofit the Center for Reproductive Rights. Those include Utah, Wisconsin and Wyoming.

Arizona's ban dates to 1864 but has been re-etched in law multiple times since then. The version on the books requires a two to five year prison sentence for anyone who "provides, supplies or administers to a pregnant woman, or procures such woman to take any medicine, drugs or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman."

The law has been dormant for decades after the U.S. Supreme Court established abortion access in the landmark case Roe v. Wade. The court overturned itself in 2022, leaving abortion policy up to the states. While many states protected abortion access in the wake of that ruling, dozens have taken steps to limit access.

Arizona, at the time led by a Republican-majority legislature and Republican Gov. Doug Ducey, was one of those. The policymakers enacted a law banning abortions after 15 weeks in most circumstances. The state's top court ruled last week, however, that the older ban could go into effect.

States like Oklahoma, Kentucky and Idaho also levy penalties for providers up to 5 years of prison, according to the Center for Reproductive Rights, which opposes any penalties or criminalization of abortion.

Alabama has penalties of at least a decade and up to 99 years in prison, according to the center. Alabama has a ban on abortion at any stage of pregnancy except to save the mother's life or if there is a threat to the physical health of the mother.

How Arizona's ban could be 'more extreme' now

One abortion law and history expert said Arizona's ban going into effect today could have a more far-reaching impact than 160 years ago.

The law dating to 1864 is "more extreme in its real world effects, most likely, than it would have been at the time of its passage," said Mary Ziegler, Martin Luther King Jr. professor of law at the University of California, Davis, and who has written six books about reproductive rights, their history and the politics of the issue.

Ziegler said efforts to criminalize abortions in the 1860s were led by physicians who knew exceptions to save a mother's life gave them leeway. Pregnancy was also much more dangerous then, and pregnancy tests were reliable only much later in gestation, she said.

"And when physicians wanted to perform abortions, it was very hard to second guess them if they said doing so was necessary to save the life of a patient," she said. Prosecutions mostly occurred when a patient died, and after an autopsy, she said.

How would Arizona ban on abortion look? A century of prosecutions, deaths before Roe sheds light

But pregnancies have become safer and early testing more reliable. Whether an abortion occurs to save the life of the mother will also be interpreted much more strictly in today's partisan political atmosphere, Ziegler said.

"A life exception is going to be interpreted very narrowly by prosecutors, versus more broadly, both because the medical care is different, our knowledge of pregnancy is different, the politics of abortion are different," Ziegler said. "All of that means even though it's the same law, it's not going to be the same effect."

That likely means uncertainty for physicians about when they can provide an abortion, ultimately leading to a chilling effect and possible physical harm to women. The strict law could leave doctors in a "lose-lose" situation, Ziegler said, and drive abortion providers and obstetricians to flee the state as happened in Idaho, which has a ban but also more exceptions than Arizona.

Fifty-one obstetricians left Idaho in the year after its strict ban could be enforced, leaving half of the state's counties without doctors trained to care for women during pregnancy and childbirth, according to The Associated Press.

Will women go out of state for abortion access?

The Center for Reproductive Rights and Planned Parenthood Arizona predict that the Grand Canyon State's ban could drive some women seeking abortion to neighboring states. Those states are already seeing an increase of out-of-state patients as more conservative states have cut back on abortion access after Roe.

All of Arizona's neighboring states allow women to obtain abortions, though they do impose varying rules about when during a pregnancy those abortions can occur, according to the Guttmacher Institute. Both New Mexico and Colorado have no time limit on when during a pregnancy a woman can obtain an abortion, according to the institute.

California Attorney General Rob Bonta, a Democrat, recognized the Arizona court ruling would reverberate beyond state lines in a social media post Tuesday: "To Arizona women scared today, I promise: if you seek care in CA, you will be protected here," he wrote.

Meanwhile, Arizona's slate of elected Democratic leaders have pledged to protect women or doctors who go elsewhere to receive or provide care, and have taken steps to try and prevent prosecutions that Republican county attorneys could bring.

Mayes and Democratic Gov. Katie Hobbs were both elected in 2022, alongside Democratic Secretary of State Adrian Fontes, marking the first time in nearly 50 years the top three posts in state government have been occupied by Democrats.

Reach reporter Stacey Barchenger at stacey.barchenger@arizonarepublic.com or 480-416-5669.

This article originally appeared on Arizona Republic: Arizona abortion ban: How does 1864 law compare to other states?