The Arizona supreme court on Tuesday upheld an 1864 law that bans all abortions in the state except those deemed necessary to save the life of the mother.
In the Tuesday decision, the Arizona court ruled that because the federal right to abortion was struck down when Roe v. Wade was overturned, there is nothing in either federal or state law preventing the enforcement of the 160-year-old statute, which predates Arizona’s statehood. The court did, however, stay enforcement of the more restrictive statute for at least 14 days, allowing abortions to continue in that time, while a lower court adjudicates further arguments about the law’s constitutionality.
“Absent the federal constitutional abortion right, and because (the 15-week abortion law) does not independently authorize abortion, there is no provision in federal or state law prohibiting (the 1864 law’s) operation. Accordingly, (the 1864 law) is now enforceable,” Justice John R. Lopez IV wrote for the 4-2 majority.
Arizona passed a law in 2022 allowing doctors to provide abortions up to 15 weeks into pregnancy, after the Supreme Court ruled in Dobbs v. Jackson Women’s Health Organization that the Constitution does not confer a right to abortion. However, that law relied on a federal right to abortion to supersede the pre-existing law, the court found.
The state’s 1864 statute was “never repealed—in fact, it was recodified even after it was enjoined,” Arizona’s justices wrote. Arizona’s now-enforceable law would punish any doctor who “provides, supplies, or administers” abortion-inducing drugs or procedures to women, “unless it is necessary to save her life,” with a two to five year prison sentence.
Arizona governor Katie Hobbs said she was “devastated” and called the abortion ban “one of the most extreme in the country.”
“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 at a press briefing on Tuesday. “Let 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 heads only serves to create more chaos for women and doctors in our state.”
Hobbs called on the Arizona legislature to repeal the state’s 1864 law “today,” so that “we are not living under the confusion and chaos and lack of access to healthcare that’s needed.”
Activists have petitioned to put abortion access on Arizona’s November ballot, announcing this month that they had more-than-exceeded the required number of signatures needed to introduce a measure. The proposed constitutional amendment would enshrine abortion as a “fundamental right” in Arizona’s state constitution, and would allow abortions until about the 24th week of pregnancy, unless a health-care professional deems abortion necessary to “protect the life or physical or mental health of the pregnant” mother.