Arizona Supreme Court rules a near-total abortion ban from 1864 is enforceable
PHOENIX — The Arizona Supreme Court ruled Tuesday that a 160-year-old near-total abortion ban still on the books in the state is enforceable, a bombshell decision that adds the state to the growing lists of places where abortion care is effectively banned.
The ruling allows an 1864 law in Arizona to stand that made abortion a a felony punishable by two to five years in prison for anyone who performs or helps a woman obtain one.
The law — which was codified again in 1901, and once again in 1913, after Arizona became a state — included an exception to save the woman’s life.
That Civil War-era law — enacted a half-century before Arizona even gained statehood — was never repealed and an appellate court ruled last year that it could remain on the books as long as it was “harmonized” with the 2022 law, leading to substantial confusion in Arizona regarding exactly when during a pregnancy abortion was outlawed.
The decision — which could shutter abortion clinics in the state — effectively undoes a lower court’s ruling that stated that a more recent 15-week ban from March 2022 superseded the 1864 law.
In a 4-2 ruling, the court’s majority concluded that the 15-week ban “does not create a right to, or otherwise provide independent statutory authority for, an abortion that repeals or restricts” the Civil War-era ban “but rather is predicated entirely on the existence of a federal constitutional right to an abortion since disclaimed” by the 2022 Dobbs decision that overturned Roe v. Wade.
“Absent the federal constitutional abortion right, and because” the 2022 law does not independently authorize abortion, there is no provision in federal or state law prohibiting” the 1864 ban.
They added, that the ban “is now enforceable.”
Tuesday’s ruling marks the latest chapter in a decades-long saga of litigation in the battleground state over abortion rights.
Reproductive rights groups had sued to overturn the 19th century law in 1971.
But when the Roe decision came down in 1973, state court ruled against those groups and placed an injunction on the 1864 ban that remained in effect until the Dobbs decision.
In March 2022, Republican lawmakers in the state enacted the 15-week trigger ban, which, months later — after the Dobbs decision — snapped into effect. The law makes exceptions for medical emergencies but not for rape or incest.
Litigation resumed after that decision as lawmakers on both sides of the issues sought clarity on whether to enforce the 1864 near-total ban or the 2022 15-week ban.
A state appellate initially court ruled that both the 1864 and 2022 laws could eventually be “harmonized,” but also said that the 15-week ban superseded the near-total abortion ban and put on hold large parts of the older law.
But the issue could soon be in the hands of voters. Abortion rights groups in the state are likely to succeed in their goal of putting a proposed constitutional amendment on the November 2024 ballot that would create a “fundamental right” to receive abortion care up until fetal viability, or about the 24th week of pregnancy.
If voters approved the ballot measure, it would effectively undo the 1864 ban that now remains law in the state. it would bar the state from restricting abortion care in situations where the health or life of the pregnant person is at risk after the point of viability, according to the treating health care professional.
The ballot effort is one of at least 11 across the country that seek to put the issue directly in the hands of voters — a move that has the potential to significantly boost turnout for Democratic candidates emphasizing the issue.
In 2024, that could factor heavily into the outcome of both the presidential and U.S. Senate races in Arizona. President Joe Biden, whose campaign is leaning heavily into reproductive rights, won the state by just over 10,000 votes four years ago. And the Senate race features a tough battle to fill the seat held by the retiring independent Sen. Krysten Sinema, I-Ariz., between Democrat Ruben Gallego and Republican Kari Lake.
During her unsuccessful 2022 run for governor in Arizona, Lake said she supported the 1864 law, calling it “a great law that’s already on the books.” But Lake now says she opposes the 1864 law, as well as a federal abortion ban, while also acknowledging that her own views regarding state policy conflict with some voters’ preferences.
Gallego, who is backed by several reproductive rights groups, has said he supports the ballot measure. As a member of the U.S. House, he is among the co-sponsors of the Women’s Health Protection Act, which would create federal abortion protections.
The ruling Tuesday — the second in a swing state on the issue in as many weeks — further highlights the already prominent role abortion rights will play in Arizona and across the country.
Last week, the Florida Supreme Court upheld a 15-week ban on abortion in the state, which effectively meant that a six-week abortion ban, with exceptions for rape, incest and the life of the woman, that Gov. Ron DeSantis signed into law last year will take effect. The state's high court also allowed a proposed amendment that would enshrine abortion protections in the state constitution to appear on the November ballot.
Tuesday’s decision sent shockwaves through the reproductive rights community in Arizona and nationally, though the decision wasn’t entirely unexpected. All seven justices on the Arizona Supreme Court were appointed by Republican governors, and during opening arguments in December, they aggressively, but civilly, quizzed attorneys on both sides about the fact that the 15-week ban enacted last year did not feature any language making clear whether it was designed to repeal or replace the 1864 ban.
Only six justices participated in Tuesday’s decision, however, after Justice Bill Montgomery — who previously accused Planned Parenthood of practicing “generational genocide” — recused himself. (The court’s chief justice did not appoint another judge to take the spot, which is an option under Arizona law).
The abortion landscape in Arizona has been uniquely confusing since Roe v. Wade was overturned.
While the 1864 law had been on hold after the Supreme Court’s 1973 Roe decision, then-Arizona Attorney General Mark Brnovich, a Republican, successfully sued to have that injunction lifted following the overturning of Roe, putting the ban back into effect — though a higher court put that ruling on hold.
But after Democrat Kris Mayes succeeded Brnovich as attorney general, she announced that she would not enforce the 1864 ban.
That led to suits from anti-abortion groups seeking enforcement of the ban, which ultimately led to the case making its way up to the state Supreme Court.
PHOENIX — The Arizona Supreme Court ruled Tuesday that a 160-year-old near-total abortion ban still on the books in the state is enforceable, a bombshell decision that adds the state to the growing lists of places where abortion care is effectively banned.
The ruling allows an 1864 law in Arizona to stand that made abortion a a felony punishable by two to five years in prison for anyone who performs or helps a woman obtain one.
The law — which was codified again in 1901, and once again in 1913, after Arizona became a state — included an exception to save the woman’s life.
That Civil War-era law — enacted a half-century before Arizona even gained statehood — was never repealed and an appellate court ruled last year that it could remain on the books as long as it was “harmonized” with the 2022 law, leading to substantial confusion in Arizona regarding exactly when during a pregnancy abortion was outlawed.
The decision — which could shutter abortion clinics in the state — effectively undoes a lower court’s ruling that stated that a more recent 15-week ban from March 2022 superseded the 1864 law.
In a 4-2 ruling, the court’s majority concluded that the 15-week ban “does not create a right to, or otherwise provide independent statutory authority for, an abortion that repeals or restricts” the Civil War-era ban “but rather is predicated entirely on the existence of a federal constitutional right to an abortion since disclaimed” by the 2022 Dobbs decision that overturned Roe v. Wade.
“Absent the federal constitutional abortion right, and because” the 2022 law does not independently authorize abortion, there is no provision in federal or state law prohibiting” the 1864 ban.
They added, that the ban “is now enforceable.”
Tuesday’s ruling marks the latest chapter in a decades-long saga of litigation in the battleground state over abortion rights.
Reproductive rights groups had sued to overturn the 19th century law in 1971.
But when the Roe decision came down in 1973, state court ruled against those groups and placed an injunction on the 1864 ban that remained in effect until the Dobbs decision.
In March 2022, Republican lawmakers in the state enacted the 15-week trigger ban, which, months later — after the Dobbs decision — snapped into effect. The law makes exceptions for medical emergencies but not for rape or incest.
Litigation resumed after that decision as lawmakers on both sides of the issues sought clarity on whether to enforce the 1864 near-total ban or the 2022 15-week ban.
A state appellate initially court ruled that both the 1864 and 2022 laws could eventually be “harmonized,” but also said that the 15-week ban superseded the near-total abortion ban and put on hold large parts of the older law.
But the issue could soon be in the hands of voters. Abortion rights groups in the state are likely to succeed in their goal of putting a proposed constitutional amendment on the November 2024 ballot that would create a “fundamental right” to receive abortion care up until fetal viability, or about the 24th week of pregnancy.
If voters approved the ballot measure, it would effectively undo the 1864 ban that now remains law in the state. it would bar the state from restricting abortion care in situations where the health or life of the pregnant person is at risk after the point of viability, according to the treating health care professional.
The ballot effort is one of at least 11 across the country that seek to put the issue directly in the hands of voters — a move that has the potential to significantly boost turnout for Democratic candidates emphasizing the issue.
In 2024, that could factor heavily into the outcome of both the presidential and U.S. Senate races in Arizona. President Joe Biden, whose campaign is leaning heavily into reproductive rights, won the state by just over 10,000 votes four years ago. And the Senate race features a tough battle to fill the seat held by the retiring independent Sen. Krysten Sinema, I-Ariz., between Democrat Ruben Gallego and Republican Kari Lake.
During her unsuccessful 2022 run for governor in Arizona, Lake said she supported the 1864 law, calling it “a great law that’s already on the books.” But Lake now says she opposes the 1864 law, as well as a federal abortion ban, while also acknowledging that her own views regarding state policy conflict with some voters’ preferences.
Gallego, who is backed by several reproductive rights groups, has said he supports the ballot measure. As a member of the U.S. House, he is among the co-sponsors of the Women’s Health Protection Act, which would create federal abortion protections.
The ruling Tuesday — the second in a swing state on the issue in as many weeks — further highlights the already prominent role abortion rights will play in Arizona and across the country.
Last week, the Florida Supreme Court upheld a 15-week ban on abortion in the state, which effectively meant that a six-week abortion ban, with exceptions for rape, incest and the life of the woman, that Gov. Ron DeSantis signed into law last year will take effect. The state's high court also allowed a proposed amendment that would enshrine abortion protections in the state constitution to appear on the November ballot.
Tuesday’s decision sent shockwaves through the reproductive rights community in Arizona and nationally, though the decision wasn’t entirely unexpected. All seven justices on the Arizona Supreme Court were appointed by Republican governors, and during opening arguments in December, they aggressively, but civilly, quizzed attorneys on both sides about the fact that the 15-week ban enacted last year did not feature any language making clear whether it was designed to repeal or replace the 1864 ban.
Only six justices participated in Tuesday’s decision, however, after Justice Bill Montgomery — who previously accused Planned Parenthood of practicing “generational genocide” — recused himself. (The court’s chief justice did not appoint another judge to take the spot, which is an option under Arizona law).
The abortion landscape in Arizona has been uniquely confusing since Roe v. Wade was overturned.
While the 1864 law had been on hold after the Supreme Court’s 1973 Roe decision, then-Arizona Attorney General Mark Brnovich, a Republican, successfully sued to have that injunction lifted following the overturning of Roe, putting the ban back into effect — though a higher court put that ruling on hold.
But after Democrat Kris Mayes succeeded Brnovich as attorney general, she announced that she would not enforce the 1864 ban.
That led to suits from anti-abortion groups seeking enforcement of the ban, which ultimately led to the case making its way up to the state Supreme Court.
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