Enforcement of 1864 abortion ban delayed until late September

Photo by Jerod MacDonald-Evoy | Arizona Mirror

The Arizona Supreme Court has agreed to delay the enforcement of a 160-year-old abortion ban that mandates prison time for doctors, granting women and health care providers across the state a reprieve until September. 

In doing so, the court granted a request from Arizona Attorney General Kris Mayes, who asked the justices to delay the implementation of the court’s April 9 ruling on the Civil War-era abortion ban so she could craft an appeal to the U.S. Supreme Court.

In its bombshell April ruling, the Arizona Supreme Court revived a law from 1864 that carries with it a 2 to 5 year prison sentence for doctors who perform an abortion for any other reason than saving a woman’s life. The decision upended the political landscape in Arizona, and led to weeks of turmoil at the state legislature as Democrats and a handful of Republican lawmakers pushed to repeal the near-total ban. 

And while that effort finally proved successful on May 1, the repeal won’t go into effect until 90 days after the end of the legislative session, which is still nowhere in sight. That uncertainty prompted reproductive rights advocates to use legal maneuvers to delay the court’s ruling as much as possible. 

On April 30, Mayes, a Democrat who campaigned on a promise to protect abortion access, filed a motion requesting a 90-day pause while her office explored the possibility of appealing the decision to the U.S. Supreme Court. On Monday, the Arizona Supreme Court froze enforcement of the 1864 law until Aug. 12. But because of a different court-ordered 45-day stay on implementing the Supreme Court’s ruling, it means the 1864 law can’t be enforced until Sept. 26. 

In a written statement, Mayes said she was grateful for the increased delay, and vowed to continue looking into whether to appeal the state court’s ruling, saying she believes it warrants further discussion. 

“I continue to believe this case was wrongly decided, and there are issues that merit additional judicial review,” she said. “I will do everything I can to ensure that doctors can provide medical care for their patients according to their best judgment, not the beliefs of the men elected to the territorial legislature 160 years ago.” 

In her request, Mayes argued that the Arizona Supreme Court’s ruling potentially undermined a federal judge’s decision in a separate abortion law case, raising constitutional questions. That’s because the Arizona justices relied on a fetal personhood law from 2021 to justify making the 1864 near-total ban the law of the land. But that 2021 law was blocked by a federal judge, who explicitly prohibited it from being used against doctors. 

Using the 2021 law to revive the 1864 law, Mayes wrote, violated that ruling. 

Chris Love, the spokeswoman for the Arizona for Abortion Access campaign, which is spearheading an effort to let voters decide whether Arizonans should have a constitutional right to abortion, lamented that the court’s ruling still leaves abortion restrictions in place. Until the 1864 law can go into effect in September, a 15-week gestational ban passed in 2022 will determine who can get a procedure in the state. 

That law includes no exceptions for rape or incest beyond its 15-week deadline and only allows abortions to be performed beyond that date if a woman faces imminent death or permanent injury. 

“Arizonans deserve to know our rights are ensured and protected, not constantly in flux based on the whims of politicians or the outcomes of endless lawsuits,” Love said in an emailed statement. “Only the Arizona Abortion Access (Act) restores and protects Arizona’s right to access abortion care once and for all, and that’s why Arizona voters will turn out to support it in November.”

The initiative, which has so far exceeded its required signature threshold, preserves abortion access up until fetal viability, which is generally regarded as 24 weeks, and includes exceptions beyond that time for procedures that a doctor deems necessary to protect the life, physical or mental health of their patient. 

Angela Flores, the CEO of Planned Parenthood Arizona, celebrated the delay of the near-total ban and promised to continue offering abortion care as long as “legally possible.” 

“Planned Parenthood Arizona will continue to provide abortion care through 15 weeks of pregnancy and we remain focused on ensuring patients have access to abortion care for as long as legally possible,” Flores said, in a prepared statement. “We know that it is now more important than ever to provide care to as many patients as we legally can, and we are committed to expanding our services to meet the increasing needs of our community, including recently resuming medication abortion services at our Flagstaff Health Center. We will not be intimidated or silenced by anti-abortion extremists, because our bodies and our autonomy are at stake.”

The organization is the state’s largest abortion provider, with four out of its seven clinics offering the service, and has been the main challenger of the 1864 law in court. On May 1, hours after the Arizona legislature fully repealed the 1864 law, Planned Parenthood Arizona filed a motion requesting that the state supreme court delay the enforcement of the near-total ban until after the repeal became effective. 

But while the justices granted Mayes’ 90-day delay on Tuesday, they also denied Planned Parenthood Arizona’s request, without an explanation. 

Jake Warner, an attorney with anti-abortion legal firm Alliance Defending Freedom, who argued in court to revive the 1864 law, lamented the court’s most recent decision but pointed out that the delay still won’t completely prevent the law from going into effect. 

“Arizona’s pro-life law has protected unborn children for over 100 years, and while we are deeply saddened by the legislature’s recent vote to repeal the law, it won’t take effect immediately, as the legislature intentionally decided,” Warner said. “And though the court paused its judgment, we will continue working to protect unborn children and promote real support and health care for Arizona families.”

Arizona lawmakers failed to add an emergency clause to the repeal that could have given it immediate impact. And because the court-ordered delay doesn’t extend beyond November, when Arizona voters will likely have a chance to weigh in, the 1864 law is still expected to be in place for at least a short period of time. On top of that, any decision voters take won’t be official until the election is certified, on Nov. 25.

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