What is the 1864 law banning abortion in Arizona that the State Supreme Court upheld?
The Arizona Supreme Court in a 4-2 ruling upheld a law on the books from more than a century and a half ago that virtually bans all abortions in the state.
Abortion could be virtually illegal and criminally punishable with incarceration in Arizona within two months after the state’s supreme court upheld a 160-year-old law still on the books. The 4-2 ruling, effectively undoes a decision by a lower court that put a stay on enforcement of the 1864 law that bans virtually all abortions, except to save a woman’s life.
The Civil War era law, enacted before Arizona was a state, makes performing or aiding in an abortion a felony which carries a mandatory two to five year prison sentence. “In light of this Opinion, physicians are now on notice that all abortions, except those necessary to save a woman’s life, are illegal,” wrote Justice John R. Lopez IV in the decision.
Ruling on hold for two weeks while lower court to considers “additional constitutional challenges”
The Arizona Supreme Court sent the case back to the trial court for it to “additional constitutional challenges” and put their ruling on hold for 14 days. The 1864 abortion law had been stayed since 1973 when a judge place an injunction on it which at the same time paused litigation to overturn the it after the US Supreme Court ruling in Roe v Wade that year gave women the right to an abortion.
In the expectation that the SCOTUS decision would be overturned, Republican lawmakers in the state enacted a 15-week trigger ban in March 2022, which went into effect after the US Supreme Courts Dobbs ruling a couple months later. That law made exceptions for medical emergencies but not rape or incest.
However, when Roe was overturned, there were now two conflicting statutes on the books, and the matter was brought before the state’s courts. An appellate court ruled that the 15-week ban should take precedence over the 1864 law.
However, in their decision handed down on Tuesday, the Arizona Supreme Court noted that “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.” All the justices were appointed by the former governor Republican Doug Ducey.
Current Arizona Gov. Katie Hobbs, a Democrat, posted on X that “It is a dark day in Arizona.” She has called on the GOP-controlled Legislature, which is currently in session, to repeal the 1864 ban. That seems unlikely to happen according to the Arizona Mirror, meaning the ban would come into effect in 59 days.
Arizona Attorney General Kris Mayes, also a Democrat, called the ruling “unconscionable and an affront to freedom” in a statement. “Let me be completely clear, as long as I am Attorney General, no woman or doctor will be prosecuted under this draconian law in this state,” she said.