The Arizona Supreme Court has made a landmark decision to enforce a long-dormant law that bans almost all abortions in the state. This law, which dates back to before Arizona’s statehood, allows abortions only if the mother’s life is in jeopardy. There are no exceptions for cases of rape or incest. The court’s decision suggested that doctors could potentially be prosecuted under the 1864 law, though this was not explicitly stated in the opinion.
The law in question was originally enacted long before Arizona became a state and was blocked from enforcement shortly after the U.S. Supreme Court issued its Roe v. Wade decision in 1973. After the overturning of the Roe decision in June 2022, Arizona’s Attorney General at that time, Mark Brnovich, successfully requested to lift an injunction that had been blocking the enforcement of the 1864 ban. The state Court of Appeals then suspended the law while the issue was brought before the Arizona Supreme Court.
Under the 1864 law, anyone who provides or administers any substance or uses means to procure a miscarriage for a pregnant woman, except in cases where it is necessary to save her life, can face prosecution. The court’s ruling stated that physicians are now on notice that all abortions, except those necessary to save a woman’s life, are illegal. The law also carries a potential sentence of two to five years in prison upon conviction, though it is believed that criminal penalties will likely apply only to doctors.
The decision by the Arizona Supreme Court to enforce this near-total abortion ban has brought the issue of abortion access to the forefront in the state, especially as it pertains to the 2024 presidential election and control of the U.S. Senate. Democrats have blamed former President Donald Trump for appointing the justices who formed the majority that ended the national right to abortion. President Biden and his allies are working to restore abortion rights while Trump has avoided endorsing a national abortion ban. This ruling will give Arizona the strictest abortion law among the top-tier battleground states.
Arizona Governor Katie Hobbs has called for the state Legislature to repeal the ban, stating that it will have devastating consequences for the state. The number of abortions in Arizona is expected to drastically decrease under this near-total ban. Abortion rights advocates have started a push to collect signatures for a proposed constitutional amendment that would guarantee abortion rights until a fetus could survive outside the womb, typically around 24 weeks. This amendment would allow for later abortions to protect the mother’s physical or mental health.
