Arizona Supreme Court rules a near-total abortion ban from 1864 is enforceable
Posted: Tue Apr 09, 2024 4:17 pm
https://www.nbcnews.com/news/amp/rcna146915The ruling is on hold for 14 days, and voters will likely have a chance to weigh in on a ballot measure enshrining abortion rights in the state's constitution this fall.
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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 felony punishable by two to five years in prison for anyone who performs one or helps a woman obtain one.
The law — which was codified in 1901, and again in 1913 — outlaws abortion from the moment of conception but includes 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That Civil War-era law — enacted a half-century before Arizona even gained statehood — was never repealed and an appellate court ruled last year that it could remain on the books as long as it was “harmonized” with a 2022 law, leading to substantial confusion in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in the state — effectively undoes a lower court’s ruling that stated that a more recent 15-week ban from March 2022 superseded the 1864 law.
The Arizona Supreme Court said it would put its decision on hold for 14 days, writing that it would send the case back to a lower court so that court could consider “additional constitutional challenges” that haven’t yet been cleared up.
Attorney General Kris Mayes, a Democrat, said moments after the ruling that she would not enforce the law.
“Let me be completely clear, as long as I am Attorney General, no woman or doctor will be prosecuted under this draconian law in this state,” Mayes said in a statement, adding that the decision was “unconscionable” and “an affront to freedom.”
Democrats all the way up to President Joe Biden also blasted the ruling.
“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,” Biden said in a statement. He called the ban “cruel” and “a result of the extreme agenda of Republican elected officials who are committed to ripping away women’s freedom” and vowed to “continue to fight to protect reproductive rights.”
Vice President Kamala Harris announced shortly after the ruling that she would travel to Arizona on Friday “to continue her leadership in the fight for reproductive freedoms."
Arizona Gov. Katie Hobbs called for the GOP-controlled Legislature, which is currently in session, to repeal the 1864 ban, though there was no immediate indication that Republican lawmakers in either chamber would take up such an effort.
"We are 14 days away from this extreme ban coming back to life," Hobbs, a Democrat, said at a press conference. "It must be repealed immediately."
While Hobbs said she was "sure" reproductive rights advocates would appeal the ruling in the 14-day window they were given, she also suggested that the best avenue to counter the ruling would be for voters to support abortion rights on the November ballot.
"It is more urgent than ever that Arizonans have the opportunity to vote to enshrine the right to abortion in our constitution this November. I’m confident that Arizonans will support this ballot measure, and I’m going to continue doing everything in my power to make sure it is successful," Hobbs said.
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.”
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The issue, however, 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 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.
That 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.
