Arizona’s top court allows near-total 1864 abortion ban to go into effect

In 1864, the territory of Arizona in the United States passed a law that criminalised nearly all abortions.

Arizona was not even a state at the time of the law’s passage. But now, 160 years later, its state Supreme Court has ruled the near-total ban can go into effect in 14 days.

The court’s decision on Tuesday triggers what would be one of the most restrictive state laws to govern abortion access in the US.

Writing for the majority in the four-to-two ruling, Judge John Lopez explained that Arizona’s legislature had never established a right to abortion access in the state.

“We defer, as we are constitutionally obligated to do, to the legislature’s judgement, which is accountable to, and thus reflects, the mutable will of our citizens,” he said.

A previous court decision had blocked the 1864 law from being enforced, but Tuesday’s decision lifts the stay on the law.

Under the 1864 Arizona law, “every person” who participates in conducting an abortion can be held criminally liable and face a minimum sentence of two years in prison. There are no exceptions for cases of rape or incest, although there is an exception when a pregnant person’s life is at risk.

Arizona joins 14 other states with near-complete abortion bans. In 2022, the conservative-dominated US Supreme Court overturned federal protections for abortions, leaving questions of abortion access largely up to individual states.

It is a dark day in Arizona. We are just fourteen days away from one of the most extreme abortion bans in the country.

But my message to Arizona women is this: I won’t rest, and I won’t stop fighting until we have secured the right to abortion.

That is my promise to you.

— Governor Katie Hobbs (@GovernorHobbs) April 9, 2024

The decision spurred alarm among reproductive health advocates, and Democrats were swift to criticise Arizona’s state Supreme Court bench, composed of justices entirely appointed by Republican governors.

Arizona Attorney General Kris Mayes, for instance, condemned the ruling as “unconscionable and an affront to freedom”. She said she would not prosecute any doctor or woman under the “draconian law”.

“Today’s decision to reimpose a law from a time when Arizona wasn’t a state, the Civil War was raging, and women couldn’t even vote will go down in history as a stain on our state,” she said in a statement.

In post on the social media platform X, Arizona Governor Katie Hobbs, also a Democrat, called Tuesday “a dark day in Arizona”.

“But my message to Arizona women is this: I won’t rest, and I won’t stop fighting until we have secured the right to abortion. That is my promise to you,” she said.

Planned Parenthood, which provides abortions and other healthcare services, pledged to continue providing abortion services until the law goes into effect.

“Today’s deplorable decision from the state Supreme Court sends Arizona back nearly 150 years,” the group wrote on X. “This ruling will cause long-lasting, detrimental harms for our communities. It strips Arizonans of their bodily autonomy and bans abortion in nearly all scenarios.”

Planned Parenthood had initially challenged the century-old abortion ban in 1971.

Two years later, the US Supreme Court upheld the federal right to abortion in the landmark 1973 Roe v Wade ruling. That paved the way for a judge to side with Planned Parenthood and block the 1864 abortion ban.

But the Roe decision has since been overturned, throwing the right to abortion access in question across the country.

In 2022, then-state Attorney General Mark Brnovich, a Republican, challenged the court order that effectively placed the 1864 ban on ice. Planned Parenthood appealed, and when Governor Hobbs and Attorney General Mayes took office in 2023, they declined to continue the state’s attempt to defend the ban.

But that was not the end of the legal push to put the 19th-century ban in place. Pro-abortion rights obstetrician Eric Hazelrigg and Yavapai County Attorney Dennis McGrane stepped in, championing the 1864 ban in the courts with the support of the Alliance Defending Freedom, a conservative legal group.

Tuesday’s ruling means the 1864 law will supersede a March 2022 law signed by then-Republican Governor Doug Ducey that banned most abortions after 15 weeks of pregnancy.

Abortion on ballot

The decision supercharges an issue that looms large in advance of November’s presidential election: Abortion is set to be a prominent issue on the ballot.

President Joe Biden, a Democrat, has positioned himself as a defender of reproductive health and women’s rights, while his likely Republican challenger, former President Donald Trump, has voiced support for limits on abortion.

While Trump has flirted with support for a federal abortion ban, he said earlier this week that the procedure’s legality should be left up to the states. That, in turn, has stirred the ire of some conservatives, who had hoped he would take a firmer stance against abortion nationwide.

Biden’s campaign has accused the former president of “scrambling” to avoid being held accountable at the ballot box for his abortion stance. Trump has repeatedly highlighted his role in appointing the US Supreme Court justices that overturned Roe v Wade.

Biden beat Trump by just more than 10,000 votes in Arizona in the 2020 election.

In a statement released by the White House on Tuesday, Biden decried the Arizona ban as “extreme and dangerous”.

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

This is untenable, and it is not what the majority of Arizonans want nor deserve. If you or someone you know needs care, visit:

— Alexis McGill Johnson (@alexismcgill) April 9, 2024

But activists in Arizona are hoping that they can take the issue of abortion access directly to the voters this November.

Organisers say they have gathered enough signatures to add a measure to November’s ballot that would enshrine abortion rights in the state’s constitution. Such referendums have had a perfect success rate in recent elections and have been credited with mobilising Democratic voters.

Other states have likewise seen a tightening of abortion law, with some gearing up for a prospective showdown on November’s ballots.

Florida’s Supreme Court, for instance, upheld a six-week abortion ban in the state last week. Critics, however, say six weeks is too short a period for most people to know if they are pregnant.

But on the same day, the Florida Supreme Court allowed a ballot measure to proceed that would likewise allow voters to decide whether abortion rights should be protected in the state constitution.