Arizona can enforce an 1864 law criminalizing nearly all abortions, court says

It provides no exceptions for rape or incest, but allows abortions if a mother’s life is in danger. Enforcement can take effect in 14 days

Arizona State Capitol is seen in Phoenix, Arizona, U.S. April 9, 2024.
Arizona State Capitol is seen in Phoenix, Arizona, U.S. April 9, 2024.Go Nakamura (REUTERS)

Arizona can soon enforce a long-dormant law criminalizing all abortions except when a mother’s life is at stake, the state Supreme Court ruled Tuesday, opening the door to prosecuting doctors who perform the procedures.

Under the decision, a long-dormant law that predates Arizona’s statehood would take effect. It provides no exceptions for rape or incest, but allows abortions if a mother’s life is in danger. Enforcement can take effect in 14 days.

The ruling suggests doctors can be prosecuted for performing the procedure, but the majority ruling doesn’t explicitly say that. The 1864 law carries a sentence of two to five years in prison for doctors or anyone else who assists in an abortion.

Arizona’s high court ruling reviewed a 2022 decision by the state Court of Appeals that said doctors couldn’t be charged for performing the procedure in the first 15 weeks of pregnancy.

State Sen. Arizona Eva Burch, who dramatically announced on the Senate floor last month that her pregnancy wasn’t viable and she was getting an abortion, criticized GOP lawmakers who expressed support for the ban.

“We know that every single Republican in the Arizona House and Senate supported this territorial total ban on abortion — they signed an amicus brief affirming that very fact,” said Burch. “This moment must not slow us down.”

Burch noted that Arizonans will be able to vote this fall on a ballot measure allowing the right to abortion, adding that “the right for reproductive rights is not over in Arizona.”

Currently, 14 states are enforcing bans on abortion at all stages of pregnancy, with limited exceptions. Two states ban the procedure once cardiac activity can be detected, which is about six weeks into pregnancy and often before women realize they’re pregnant.

Nearly every ban has been challenged with a lawsuit. Courts have blocked enforcing some restrictions, including bans throughout pregnancy in Utah and Wyoming.

In Arizona, an older state Supreme Court decision had blocked enforcing the 1864 law shortly after the U.S. Supreme Court issued the 1973 Roe v. Wade decision guaranteeing a constitutional right to an abortion.

After the U.S. Supreme Court overturned Roe v. Wade in June 2022, state Attorney General Mark Brnovich, a Republican, persuaded a state judge in Tucson to lift the block on enforcing the 1864 law. Brnovich’s Democratic successor, Attorney General Kris Mayes, had urged the state’s high court to side with the Court of Appeals and hold the 1864 law in abeyance. Since the U.S. Supreme Court’s 2022 decision ending a nationwide right to abortion, most Republican-controlled states have started enforcing new bans or restrictions and most Democrat-dominated ones have sought to protect abortion access.

A proposal pending before the Arizona Legislature that would repeal the 1864 law hasn’t received a committee hearing this year. “Today’s decision to reimpose a law from a time when Arizona wasn’t a state, the Civil War was raging, and women couldn’t even vote will go down in history as a stain on our state,” Mayes said Tuesday. Former Arizona Gov. Doug Ducey, who signed the state’s current law restricting abortion after 15 weeks, posted on X saying Tuesday’s ruling was not the outcome he would have wanted.

“I signed the 15-week law as governor because it is thoughtful policy, and an approach to this very sensitive issue that Arizonans can actually agree on,” he said. President Joe Biden called the 1864 Arizona law cruel.

“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 said in a statement. “Vice President Harris and I stand with the vast majority of Americans who support a woman’s right to choose. We will continue to fight to protect reproductive rights and call on Congress to pass a law restoring the protections of Roe v. Wade.”

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