Arizona Supreme Court upholds 1864 law banning nearly all abortions

by Nathaniel Weixel - 04/09/24 1:20 PM ET

Abortion will be almost entirely illegal in Arizona after the state Supreme Court on Tuesday upheld an 1864 law that made performing abortion a felony.

The ruling adds Arizona to the list of 16 other states where abortion is effectively banned.

In a 4-2 decision, the court rejected arguments that it should uphold the current 15-week abortion ban signed in 2022 by then-Gov. Doug Ducey (R) and enforced after the end of Roe v. Wade.

Instead, the court ruled that the Civil War-era law passed before Arizona was even a state should be enforced. The court ruled to lift a stay on the law, meaning it goes into effect in 14 days.

However, the justices also sent the case back to a lower trial court to sort out questions about the law’s constitutionality.

The century-old law makes abortion a felony punishable by two to five years in prison for anyone who performs or helps a woman obtain one. It includes an extremely narrow exception for “when it is necessary” to save a pregnant person’s life.

“The decision made by the Arizona Supreme Court today is unconscionable and an affront to freedom,” state Attorney General Kris Mayes (D) said in a statement. “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.”

Abortion has been a crucial issue in Arizona, a key swing state where both Mayes and Gov. Katie Hobbs (D) won election in 2022 after running on anger over reproductive rights and the end of Roe v. Wade.

The law would effectively shutter the eight remaining abortion clinics in the state, though it’s unclear how it will be enforced. It could also force women who need abortion care to travel hundreds of miles to clinics in California.

Pima County Attorney Laura Conover, who opposed the ban and argued for the plaintiffs during oral arguments in December, said there shouldn’t be any changes to reproductive care in the immediate aftermath of the ruling.

However, she is concerned that there will be a chilling effect because physicians will be confused about whether they will be arrested for performing abortions.

Arizona Attorney General Kris Mayes smiles before a debate on Sept. 28, 2022. (AP Photo/Ross D. Franklin, File)

“What I can and will continue to say is that the health care that was provided yesterday is still lawful tomorrow,” Conover told The Hill. “Our job as public health and public safety officers is to say that health care, reproductive health care, remains safe and lawful.”

Mayes has said she will not enforce any bans, and Hobbs has issued an executive order barring county attorneys from prosecuting women and doctors for performing abortions.

“I am calling on the Legislature to do the right thing right now and repeal this 1864 ban and protect access to reproductive health care. The Republican majority in the Legislature has time and again refused to act to protect our freedoms,” Hobbs said during a press conference Tuesday. “We are 14 days away from this extreme ban coming back to life. It must be repealed immediately.”

The White House in a statement condemned the decision, the latest example of the battle over abortion in the states since Roe v. Wade was overturned.

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“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.

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

The ruling from Arizona’s GOP-appointed Supreme Court justices comes a day after former President Donald Trump said he thinks individual states will make their own decisions on abortion access, highlighting the stakes in the upcoming election.

It follows a decision in Florida, where the conservative state Supreme Court ruled to keep a 15-week abortion ban, allowing a near-total six-week ban to take effect next month. The court in a separate decision allowed an amendment on the ballot that would enshrine abortion access to the point of viability.

Democrats hope to harness anger over the ruling to drive turnout in November for a ballot measure to protect abortion access, as well as for Biden and Rep. Ruben Gallego, who is running for Senate against Republican Kari Lake.

“Arizonans deserve the right to make our own decisions about pregnancy and abortion without politicians and judges interfering,” said Chris Love, a Phoenix lawyer and spokeswoman for the ballot measure campaign.

Biden won Arizona in 2020 by 0.3 percentage points, becoming only the second Democrat in 70 years to win the state.

“Today’s ruling is devastating for Arizona women and their families. This is not what Arizonans want, and women could die because of it,” Gallego said in a statement. “Our fight against extremist bans like the one enacted today has never been more important — which is why I’m committed to doing whatever it takes to protect abortion rights at the federal level.”

In a statement, Reproductive Freedom for All President and CEO Mini Timmaraju said the decision “will cause untold harm to the people of Arizona” and showed the importance of voting for Gallego and Biden.

But in a sign of how volatile the issue of abortion has been for Republicans, both Lake and Ducey said they did not agree with the court’s ruling.

“I oppose today’s ruling,” Lake wrote in a statement, calling on Hobbs and the state’s Legislature to “come up with an immediate common sense solution that Arizonans can support.”

Lake had previously signaled her support for the 1864 law, before softening her stance.

Ducey made a similar plea for legislative action.

“The ruling today is not the outcome I would have preferred,” Ducey said in a post on the social media platform X. “I call on our elected leaders to heed the will of the people and address this issue with a policy that is workable and reflective of our electorate.”

Ducey expanded the Supreme Court from five justices to seven in 2016. All seven justices were appointed by Republican governors, but only six ruled on the case.

One justice, who previously accused Planned Parenthood of practicing “generational genocide” in a 2017 Facebook post and participated in a protest outside the organization’s Arizona headquarters in 2015, recused himself.

Rep. David Schweikert (R-Ariz.), seen as one of the most vulnerable Republicans, also said he did not support the ruling.

“This issue should be decided by Arizonans, not legislated from the bench. I encourage the state legislature to address this issue immediately,” he said in a post on X.

Before Roe was overturned, Schweikert was one of the co-sponsors of a bill in the House that would have amounted to a federal abortion ban.

Marjorie Dannenfelser, president of the politically powerful anti-abortion group SBA Pro-Life America, called the court’s decision an “enormous victory.”

“Today’s state Supreme Court decision is a major advancement in the fight for life in Arizona,” she said in a statement. But she added the November amendment means the fight isn’t over.

Updated at 12:38 p.m. EDT on April 10

Tags abortion rights Arizona Doug Ducey Joe Biden Katie Hobbs Mark Brnovich Roe v. Wade