PHOENIX – The Arizona Supreme Court ruled Tuesday that a 160-year-old abortion ban on the state’s books is still enforceable, a bombshell ruling that adds the state to a growing list of places where abortion care is effectively banned.
The decision allows for an Arizona law passed in 1864 that provides for two to five years in prison for anyone who performs an abortion or assists a woman in obtaining an abortion.
The law — codified in 1901 and again in 1913, after Arizona became a state — included an exception to save a woman’s life.
The Civil War-era law — passed half a century before Arizona gained statehood — was never repealed, and an appeals court ruled last year that it could remain on the books as long as it was “aligned” with the 2022 law. Serious confusion about when exactly abortion during pregnancy is prohibited in Arizona.
The ruling, which could shut down abortion clinics in the state, effectively overturns a lower court ruling that said a 15-week ban from March 2022 supersedes the 1864 law.
In a 4-2 decision, the court’s majority concluded that the 15-week ban did not create an abortion right that “repeals or limits the Civil War-era ban” or confers independent legal authority. The 2022 Dobbs decision in Roe v. Since overturning Wade, it has been based entirely on the existence of a federal constitutional right to abortion.
“There is no federal constitutional right to abortion, and because the 2022 law does not allow abortion independently, there is no provision in federal or state law that prohibits the 1864 ban.”
They added that the ban “can be implemented now”.
Tuesday’s ruling is the latest chapter in decades of litigation in the abortion rights battleground.
Reproductive rights groups sued in 1971 to overturn the 19th-century law.
But when Roe was handed down in 1973, a state court ruled against these groups and issued an injunction against the 1864 ban that remained in effect until the Dobbs decision.
In March 2022, Republican lawmakers in the state enacted a 15-week trigger ban that would take effect months later — after the Dobbs decision. The law It makes exceptions for medical emergencies, but not for rape or consanguinity.
Lawmakers on both sides of the issue sought clarity on whether the 1864 blanket ban or the 2022 15-week ban should apply, with court proceedings resuming after the ruling.
A state appeals court initially ruled that both the 1864 and 2022 laws could eventually be “reconciled,” but ruled that the 15-week ban virtually supersedes the abortion ban and put it on hold large parts of the old law.
In their majority opinion on Tuesday, the Arizona Supreme Court wrote that it would delay its decision for 14 days and send the case back to a lower court so the court could consider “additional constitutional challenges.” has yet to be cleared.
“When this litigation began in 1971, the plaintiffs raised a number of state and federal constitutional challenges” — to the 1864 ban — “in addition to those presented in Roe v. Wade, which were rejected by Dobbs,” they said.
“We remand the case to the trial court for consideration of these additional constitutional challenges if the plaintiffs wish to pursue them,” he said.
Attorney General Chris Mayes, a Democrat, said moments after the ruling that he would not enforce the law.
“As long as I am Attorney General, no woman or doctor will be prosecuted in this state,” Mayes said in a statement. freedom.”
However, the issue may soon be in the hands of voters. There are abortion rights groups in the state likely Achieving the goals of a proposed constitutional amendment on the November ballot that would create a “fundamental right” to access abortion care until fetal viability, or about the 24th week of pregnancy.
If voters approve the ballot measure, it would effectively repeal prohibition, which remained state law in 1864. According to the treating health professional, it would prohibit the state from restricting abortion care when the health or life of a pregnant person is at risk after viability.
The ballot effort is one of at least 11 around the country trying to put the issue directly in the hands of voters — a move that has the potential to significantly increase turnout for Democratic candidates who emphasize the issue.
In 2024, this could seriously affect the results of both the presidential and US Senate races in Arizona. President Joe Biden, whose campaign was based on reproductive rights, won the state by just over 10,000 votes four years ago. And in the Senate race, a tough battle to fill the seat held by retiring independent Sen. Krysten Sinema is likely between Democrat Ruben Gallego and Republican Kari Lake.
Lake said during his unsuccessful 2022 bid for governor in Arizona is supported Act of 1864, making it “a large law already on the books.” But the lake Now he says he opposes the 1864 law, as well as the federal abortion ban, while acknowledging that his views on public policy conflict with the preferences of some voters.
Who is Gallego? is supported He said the ballot measure was supported by several reproductive rights groups. As a member of the US House of Representatives, he is among the co-sponsors of the Women’s Health Protection Act, which would create federal abortion protections.
Tuesday’s judge — the second instance of the case in as many weeks — even more so highlights the already prominent role abortion rights will play in Arizona and across the country.
last week, Supreme Court of Florida upheld the state’s 15-week abortion ban, effectively ending a law signed by Gov. Ron DeSantis last year that would ban abortions for six weeks except for rape, consanguinity and the woman’s life. The supreme court of the state also gave permission proposed amendment Will provide abortion protections in state constitution to appear on November ballot.
Tuesday’s ruling shocked Arizona and the national reproductive rights community, though the decision was not entirely unexpected. All seven justices on the Arizona Supreme Court were appointed by Republican governors and during opening arguments in December, they aggressively but civilly questioned lawyers on both sides about the lack of language clarifying that the 15-week ban that took effect last year was intended to repeal or replace the 1864 ban.
Only six justices participated in Tuesday’s decision, but after earlier Justice Bill Montgomery accused Planned Parenthood, which is carrying out “genocide” – refused himself. (The chief justice of the court did not appoint another judge to take his place, which is an option under Arizona law).
Roe v. Arizona’s Abortion Landscape After the coup against Wade, it was peculiarly confusing.
Although the 1864 law was suspended after the Supreme Court’s 1973 Roe decision, then-Arizona Attorney General Mark Brnovich, a Republican, successfully sued Overturning that ban after Roe was overturned, the ban was reinstated — though a higher court stayed that decision.
But after Mayes replaced Brnovich as attorney general, he announced that he would not enforce the 1864 ban.
It caused this costumes with anti-abortion groups demanding enforcement of the ban, eventually leading the case to the state Supreme Court.