Arizona Supreme Court rules that a near-total abortion ban from 1864 is enforceable
Voters will likely have a chance to weigh in on the issue, as abortion rights groups are attempting to place a constitutional amendment on the November ballot.
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Arizona Supreme Court rules that a near-total abortion ban from 1864 is enforceable
The bombshell decision adds the state to the growing lists of places where abortion care is effectively banned.
Abortion rights protesters chant during a Pro Choice rally at the Tucson Federal Courthouse in Tucson, Ariz., in 2022.Sandy Huffaker / AFP via Getty Images file
April 9, 2024, 1:07 PM EDT / Updated April 9, 2024, 1:16 PM EDT
By Adam Edelman and Alex Tabet
PHOENIX — The Arizona Supreme Court ruled Tuesday that a 160-year-old near-total abortion ban still on the books in the state is enforceable, a bombshell decision that adds the state to the growing lists of places where abortion care is effectively banned.
The ruling allows an 1864 law in Arizona to stand that criminalized abortion by making it a felony punishable by two to five years in prison for anyone who performs or helps a woman obtain one.
The law — which was codified again in 1901, and once again in 1913, after Arizona became a state — included an exception to save the woman’s life.
That Civil War-era law — enacted a half-century before Arizona even gained statehood — was never repealed and an appellate court ruled last year that it could remain on the books as long as it was “harmonized” with the 2022 law, leading to substantial confusion in Arizona regarding exactly when during a pregnancy abortion was outlawed.
The decision — which could shutter abortion clinics in the state — effectively undoes a lower court’s ruling that stated that a more recent 15-week ban from March 2022 superseded the 1864 law.
In a 4-2 ruling, the court’s majority concluded that the 15-week ban “does not create a right to, or otherwise provide independent statutory authority for, an abortion that repeals or restricts” the Civil War-era ban “but rather is predicated entirely on the existence of a federal constitutional right to an abortion since disclaimed” by the 2022 Dobbs decision that overturned Roe v. Wade.
“Absent the federal constitutional abortion right, and because” the 2022 law does not independently authorize abortion, there is no provision in federal or state law prohibiting” the 1864 ban.
They added, that the ban “is now enforceable.”
