Arizona Supreme Court Rules State Can Enforce 1864 Law Criminalizing Almost All Abortions

The law would override a previous 15-week abortion ban in the state once in effect.

The Arizona Supreme Court ruled in a 4-2 decision that a 150-year-old law criminalizing almost all abortions can go into effect, according to a Tuesday court filing.

The law would override a previous 15-week abortion ban in the state, which went into effect in March 2022. The 19th-century law has been stayed for 14 days, allowing for a lower court to hear additional arguments. But if allowed to go into effect, it would be a near-total ban, making exceptions only in the case that the pregnant person’s life is threatened. Health care providers who perform abortions could face prison time of between two and five years.

An October 2022 order from the Maricopa County Superior Court requires a delay of 45 days after a mandate in the case is issued before the 1864 law can go into effect.

Citing that order, Planned Parenthood Arizona said in an emailed statement that it will continue to provide abortions for pregnant patients up to the 15-week mark for an unspecified period of time.

The 1864 law is set to face legal challenges if it goes into effect.

State Attorney General Kris Mayes, a Democrat, stated that during her term, “no woman or doctor will be prosecuted under this draconian law in this state.” Mayes said the ruling was “unconscionable” and “an affront to freedom.”

Several reproductive rights groups in a coalition called Arizona for Abortion Access are pushing forward with a ballot initiative that would allow voters to choose whether language guaranteeing abortion access up to 24 weeks of pregnancy should be added to the state’s constitution. Exceptions could be made after the 24-week mark if a provider finds that an abortion would “protect the life or physical or mental health of the pregnant individual.”

The groups, which include the state’s Planned Parenthood and American Civil Liberties Union affiliates, have successfully collected the required signatures to get the initiative on the ballot.

An August 2023 poll by Indivisible and Data For Progress, two progressive organizations, suggests that 60% of Arizonans consider themselves “pro-choice.”

“Today’s ruling is devastating. It’s also wildly out of step with where Arizona voters are at. Arizona Republicans in the courts and in public office have been playing political football with abortion rights, and voters are tired of it,” Mari Urbina, managing director at Indivisible, said in a statement. “The only course now is going directly to the voters to enshrine abortion rights in the state’s constitution.”

Since the Dobbs decision in June 2022 overturned the landmark ruling in Roe v. Wade, abortion has been banned in at least 14 states.

“Today’s decision to allow Arizona’s archaic, near-total abortion ban to be enforced is devastating for reproductive freedom,” Alexis McGill Johnson, president and CEO of Planned Parenthood Federation of America, said.

“We have already seen the effect of similar bans in states like Texas and Oklahoma, where some patients have been unable to get care even when their lives are at risk and health care providers fear criminalization,” McGill Johnson said. “This is untenable, and it is not what the majority of Arizonans want.”

Angela Florez, the president and CEO of Planned Parenthood Arizona, said in an email to HuffPost that the ban would disproportionately affect people from marginalized communities and would set Arizona back by nearly 150 years.

“We know that today’s ruling does not reflect the will of the people, as Arizonans are overwhelmingly in favor of abortion access,” Florez said. “Instead, it is the latest card in anti-abortion extremists’ deck of cruel and harmful tactics to strip Arizonans of their right to live under a rule of law that respects our bodily autonomy and reproductive decisions.”

President Joe Biden and Vice President Kamala Harris each condemned the ruling.

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

Harris largely blamed former President Donald Trump, who has taken credit for overturning Roe v. Wade.

“President Biden and I are doing everything in our power to stop Trump and restore women’s reproductive freedom, but it is going to take all of us,” she said.

Karoline Leavitt, Trump’s campaign national press secretary, also addressed the ruling on Tuesday.

“President Trump could not have been more clear,” Leavitt said (though in reality, Trump’s recent statement on abortion left a number of unanswered questions). “These are decisions for people of each state to make.”

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