Most abortions banned in Arizona after state Supreme Court upholds 1864 law

PHOENIX – Abortions are essentially being banned in Arizona after the state Supreme Court issued a highly anticipated ruling Tuesday that turned the clock back to a law passed in 1864.

The state’s highest court overturned a December 2022 appeals court decision that said doctors couldn’t be prosecuted under the pre-statehood abortion ban.

As a result, it will be illegal to perform an abortion in Arizona except when necessary to save the life of the mother. The 1864 law carries a sentence of 2-5 years in prison for doctors or anyone else who assists in an abortion.

Abortion has been legal in Arizona up to 15 weeks of pregnancy under the appeals court decision. Tuesday’s ruling has been awaited since the state Supreme Court heard arguments four months ago.

How did Arizona abortion rights advocates respond to ruling?

Arizona officials who champion abortion rights were stunned by the decision.

“My message to Arizonans is this: I will not rest, and I will not stop fighting until we have fully secured the right to reproductive health care in our state. I refuse to let radical politicians take control over women’s bodies,” Arizona Gov. Katie Hobbs said in a statement.

State Attorney General Kris Mayes, a Democrat like Hobbs, promised that no doctor or woman would be prosecuted under the abortion law.

“The decision made by the Arizona Supreme Court today is unconscionable and an affront to freedom,” Mayes said in a statement. “Make no mistake, by effectively striking down a law passed this century and replacing it with one from 160 years ago, the court has risked the health and lives of Arizonans.”

Arizona voters will likely weigh in on abortion law in November

Arizona abortion law wasn’t necessarily settled by Tuesday’s ruling.

“This is far from the end of the debate on reproductive freedom, and I look forward to the people of Arizona having their say in the matter,” Mayes said.

Voters will likely have their say in November, when the Arizona Abortion Access Act is expected to be on the ballot.

The proposed constitutional amendment would guarantee abortion rights until a fetus could survive outside the womb, typically around 24 weeks of pregnancy. It also would allow later abortions to save the mother’s life or to protect her physical or mental health.

Organizers announced earlier this month they’d already collected more than 500,000 signatures. The measure needs 383,923 valid signatures by July 3 to make it onto the Nov. 5 ballot.

When does Arizona’s near-total abortion ban go into effect?

According to the decision released Tuesday, the near-total ban goes into effect 14 days from the ruling.

However, Arizona Senate President Warren Petersen and House Speaker Ben Toma indicated there must be a 60-day waiting period before the existing law can change. The GOP leadership also left the door open to additional legislative action.

“During this time, we will be closely reviewing the court’s ruling, talking to our members, and listening to our constituents to determine the best course of action for the Legislature,” Petersen and Toma said in a joint statement.

Joint statement from Senate President Warren Petersen and House Speaker Ben Toma on the Arizona Supreme Court abortion ruling.⬇️

The Delayed Enforcement Agreement: https://t.co/xU10n1xwaj pic.twitter.com/8QUKmJdpFt

— AZSenateRepublicans (@AZSenateGOP) April 9, 2024

Arizona abortion law: How did it get to this point?

The 1973 Roe v. Wade decision by the U.S. Supreme Court ensured abortion rights at a federal level for nearly 50 years.

But SCOTUS, realigned through appointments by former President Donald Trump, overturned Roe v. Wade in June 2022, giving states the authority to make their own laws regulating abortion.

Anticipating a change in SCOTUS views, the Republican-led Arizona Legislature passed the 15-week abortion legislation, which then-Gov. Doug Ducey, a Republican, signed in March 2022. It had an exception for cases when the mother is at risk of death or serious permanent injury, but not for instances of rape or incest.

However, the law specifically said it did not repeal “other applicable state law regulating or restricting abortion,” leading to legal confusion that wasn’t fully cleared up until Tuesday’s ruling.

Arizona abortion clinics ceased operations for a time after Roe v. Wade was overturned. Abortions resumed in December of that year after an appeals court ruled in favor of the 2022 law in a case filed by Planned Parenthood Arizona.

Planned Parenthood said it would continue performing abortions under the 15-week law while it still in effect.

What was the breakdown of Arizona Supreme Court’s abortion decision?

Tuesday’s ruling by the Arizona Supreme Court was a split decision, 4-2. Justices John Lopez, Clint Bolick, James Beene and Kathryn King were in the majority, while Chief Justice Robert Brutinel and Vice Chief Justice Ann Scott Timmer dissented.

Justice Bill Montgomery previously recused himself from the case. His ability to be unbiased was questioned because spoke publicly against Planned Parenthood before he joined the state high court.

President Joe Biden responds to Arizona abortion law

The decision quickly reverberated across the U.S., even as far as the White House. President Joe Biden used it as an opportunity to criticize Republican policy.

“Millions of Arizonans will soon live under an even more extreme and dangerous abortion ban, which fails to protect women even when their health is at risk or in tragic cases of rape or incest. This cruel ban was first enacted in 1864 — more than 150 years ago, before Arizona was even a state and well before women had secured the right to vote,” Biden said in a statement.

“This ruling is a result of the extreme agenda of Republican elected officials who are committed to ripping away women’s freedom.”

The Associated Press contributed to this report.

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