Arizona’s highest court has resurrected a law from 1864 that effectively prohibits abortion in nearly all circumstances, further diminishing reproductive rights in a state where abortion was already restricted after 15 weeks of pregnancy.
In a 4-2 decision, the Arizona Supreme Court sided with an anti-abortion obstetrician and a county prosecutor who defended the law when the state’s Democratic attorney general declined to do so. Justice John Lopez, appointed by a Republican governor, emphasized that the legislature had never explicitly authorized elective abortion, deferring to the will of the citizens as expressed through their elected representatives.
Although the court lifted the stay on enforcing the 19th-century law, it restricted its enforcement to future cases. The decision’s enforcement was postponed for 14 days to address any remaining legal matters at the trial court level.
Arizona’s Democratic Attorney General Kris Mayes condemned the ruling as “unconscionable” and pledged not to prosecute any doctor or woman under the law, which she labeled as “draconian.”
However, the decision leaves open the possibility of local prosecutors enforcing the law, as demonstrated by Republican Yavapai County Attorney Dennis McGrane’s intervention in the case to uphold the statute.
This ruling adds to a series of legal setbacks for abortion rights, including a recent decision by the Florida Supreme Court allowing a Republican-backed law banning abortion after six weeks of pregnancy to go into effect.
Following the U.S. Supreme Court’s overturning of Roe v. Wade in 2022, numerous states have implemented stringent abortion bans, with Arizona being the latest to do so. Democratic President Joe Biden criticized the decision, attributing it to the “extreme agenda” of Republican officials and warning of its dire consequences for women’s freedom.
The fate of abortion rights in Arizona may ultimately be decided by voters, with a ballot measure proposed by abortion rights advocates seeking to enshrine the right to abortion in the state constitution until fetal viability.
At the heart of the Arizona Supreme Court case is an 1864 law that outlawed abortions except to save the woman’s life, with penalties including up to five years in prison for those involved in performing an abortion.
Planned Parenthood originally challenged this law in 1971, leading to a judicial order blocking it after the Roe v. Wade decision. Despite subsequent efforts to enforce the law, it remained blocked until the recent decision by the state’s Supreme Court.
The defense of the 1864 law in court was spearheaded by obstetrician Eric Hazelrigg and County Attorney Dennis McGrane, supported by the conservative legal group Alliance Defending Freedom.
In dissent, Vice Chief Justice Ann Timmer, joined by Chief Justice Robert Brutinel, argued that the legislature could have taken action to implement a near-total abortion ban during its 2023 session, emphasizing the need for democratic deliberation on such consequential matters.
