What to know about Arizona’s 1864 abortion law

The Arizona Supreme Court Tuesday upheld an 1864 law that makes performing an abortion a felony.

What does it mean?

The 4-2 decision rejected arguments for a 15-week abortion ban and makes the medical procedure almost entirely illegal in the state.

The Civil War-era law passed decades before Arizona became a state in 1912. The court lifted the stay on the law, meaning it goes into effect in 14 days.

It will make performing or helping a pregnant person obtain an abortion a felony punishable by two to five years in prison. There are no exceptions for cases of rape or incest, but there are exceptions for “when it is necessary” to save the pregnant person’s life.

Voters can remove the restrictions via a ballot measure in November. The law would effectively close abortion clinics in the state, but it’s not known how it will be enforced yet.

Opposition from all levels, sides

Lawmakers on both sides of the aisle have publicly opposed the state Supreme Court’s decision.

President Biden slammed the decision as part of the “extreme” Republican agenda. Biden’s campaign criticized former President Trump on social media for his role in appointing three of the five justices on the U.S. Supreme Court who voted to overturn Roe v. Wade.

The state’s 15-week abortion ban, signed in 2022 by then-Gov. Doug Ducey (R) will be revoked. Ducey said the ruling is “not the outcome I would have preferred” and said the 15-week ban was a “thoughtful conservative approach” to the “very sensitive issue.”

Attorney General Kris Mayes (D) said the decision is “far from the end of the debate” on reproductive freedom in the state. She said “no woman or doctor will be prosecuted under this Draconian law” while she serves as attorney general.

Both Kari Lake and Rep. Ruben Gallego (D-Ariz.), the top contenders in the state’s Senate race, issued statements opposing the decision. Other lawmakers, including Rep. Greg Stanton (D-Ariz.) and David Schweikert (R-Ariz.) have opposed the law.

Gov. Katie Hobbs (D) called it a “dark day in Arizona” and urged lawmakers to “do the right thing right now” and repeal the 1864 law “immediately.”

Hobbs has issued an executive order barring county attorneys from prosecuting women and doctors for performing abortions that she said “still stands.” She said she “won’t rest” and “won’t stop fighting until we have secured the right to abortion.

The legislative text

ARS 13-3603 refers to a section of the state’s law that bans abortion in nearly all cases. The text reads:

“A person who provides, supplies or administers to a pregnant woman, or procures such woman to take any medicine, drugs or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless it is necessary to save her life, shall be punished by imprisonment in the state prison for not less than two year nor more than five years.”

The state’s Supreme Court noted in the Tuesday decision that the text was first published in a code of governing laws by the First Legislative Assembly in Arizona. It was later wholly adopted after Arizona became a state.