The Arizona Supreme Court has upheld a pre-statehood 1864 law that bans almost all abortions after the recent overturning of Roe v. Wade no longer prevents the law from being unenforceable.
An 1864 Law
In a controversial 4-2 decision, The Arizona Supreme Court upheld an 1864 law that bans nearly all abortions except when the procedure is necessary to save the pregnant woman’s life.
The law in question actually dates back to before Arizona actually achieved statehood and makes no exceptions for rape or incest, and subjects healthcare providers performing unlawful abortions to prison sentences between two and five years.
Despite the historic law remaining in play for the past 160 years, the law has been unenforceable for decades due to protections provided under the Roe v. Wade Decision.
Ending Roe v. Wade
However, since the U.S. Supreme Court overturned Roe v. Wade, the Arizona Supreme Court was able to declare the 1864 ban enforceable since there was no longer a federal constitutional right to abortion. The decision to enforce the law has sparked a significant backlash both within Arizona and across the United States due to deep divisions within the nation over the morality of abortions.
Highlighting the tension behind abortion in the United States, Arizona Justice Bill Montgomery recused himself from the case due to prior public statements against Planned Parenthood made on Facebook. He wrote in the post that Planned Parenthood had taken part in “the greatest generational genocide known to man.”
Joe Biden’s Condemnation
In response to the Arizona Supreme Court decision, President Joe Biden condemned the ruling as extreme and dangerous for failing to protect women’s health and making no exceptions for rape and incest.
Biden said, “Millions of Arizonans will soon live under an even more extreme and dangerous abortion ban, which fails to protect women even when their health is at risk or in tragic cases of rape or incest.” He then went on to say, “This cruel ban was first enacted in 1864 — more than 150 years ago, before Arizona was even a state and well before women had secured the right to vote. This ruling is a result of the extreme agenda of Republican elected officials who are committed to ripping away women’s freedom.”
Rolling Back the Clock
Vice President Kamala Harris also spoke out about the situation and attributed the regressive ruling to former President Donald Trump for his role in overturning Roe v. Wade and enabling states to enforce stringent abortion bans.
She said, “Arizona just rolled back the clock to a time before women could vote — and, by his own admission, there’s one person responsible: Donald Trump.”
Superseding the Law
In defense of women’s right to abortions, Planned Parenthood Arizona argued that the 1864 ban was effectively superseded by more recent laws regulating abortion, like a 2022 law that bans abortions after the 15th week of pregnancy.
However, the Arizona Supreme Court decision found that there was no legislative creation of a right to abortion that would override the 1864 statute.
For now, the court’s decision to uphold the 1864 statute is on hold. The decision will be sent back to lower Arizona courts to review the case further and determine the law’s constitutionality. In the meantime, while the Arizona courts debate the law’s constitutionality, Abortion providers in the state are expected to continue operations as usual and continue to provide medical services to women seeking their services.
Fighting the Law
Arizona’s Attorney General Kris Mayes and Governor Katie Hobbs, both Democrats, have said they are committed to fighting the enforcement of the 1864 law. Attorney General Mayes said, “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.”
In her statement, Governor Hobb said, “It is more urgent than ever that Arizonans have the opportunity to vote to enshrine the right to abortion in our constitution this November. I’m confident that Arizonans will support this ballot measure, and I’m going to continue doing everything in my power to make sure it is successful.”
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Featured Image Credit: Shutterstock / Heidi Besen.