Near-total abortion ban upheld by Arizona Supreme Court

The highest court in Arizona on Tuesday ruled that authorities can enforce a 1864 law that criminalizes all abortions unless a mother’s life is at risk.

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The Arizona Supreme Court found that a 2022 state law that banned nearly all abortions after 15 weeks relied on “a federal constitutional right to an abortion” which no longer exists following the fall of Roe v. Wade.

“Absent the federal constitutional abortion right, and because (the 15-week ban in question) does not independently authorize abortion, there is no provision in federal or state law prohibiting (the 1864 ban’s) operation,” Justice John Lopez wrote in the court’s opinion. “Accordingly, (the 1864 ban) is now enforceable.”

The law allowed to stand on Tuesday was passed nearly 50 years before Arizona became a state.

The court paused enforcement of the law for 14 days, saying that the ban can only be “prospectively enforced,” the Arizona Republic reported. The law would mandate a two to five year prison sentence for anyone who aids in an abortion, the newspaper reported.

Speaking after the ruling came down, Gov. Katie Hobbs called Tuesday “a dark day in Arizona.”

“While it is currently stayed, we continue to live under an unacceptable ban, a law that still strips Arizonans of their personal autonomy and has no exceptions for women who are the victims of rape or incest, or any regard for pregnancy complications,” she said.

“Let me be clear: Arizona’s 2022 abortion ban is extreme and hurts women and the near-total Civil War era ban that continues to hang over our head only serves to create more chaos for women and doctors in our state.”

President Joe Biden called the ban “extreme and dangerous,” saying it “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,” he said. “This ruling is a result of the extreme agenda of Republican elected officials who are committed to ripping away women’s freedom.”

Arizona Attorney General Kris Mayes said Tuesday that she will not prosecute anyone facing charges under the 1864 law.

“The decision made by the Arizona Supreme Court today is unconscionable and an affront to freedom,” she said. “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.”

Tuesday’s ruling is the latest related to abortion following the Supreme Court’s decision to overturn the 1973 Roe v. Wade decision in 2022. The decision had protected abortion nationwide for decades. Since then, several states have enacted restrictions or bans on abortion access.

As of Tuesday, 14 states are enforcing abortion bans at all stages of pregnancy, with limited exceptions, The Associated Press reported. In two states, abortion is banned once cardiac activity can be detected — typically around six weeks into pregnancy and often before women know they’re pregnant.

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