Arizona Supreme Court rules abortion ban from 1864 can be enforced
The Arizona Supreme Court ruled Tuesday that a 160-year-old abortion ban may be enforced, clearing the way for a ban on almost all abortions in the state.
The 1864 ban has exceptions only to save the life of the mother but none in cases of rape or incest.
The old law supersedes Arizona's 15-week abortion ban, which was passed by the legislature and signed in 2022 by then-Gov. Doug Ducey, a Republican. The 2022 ban included exceptions in cases of medical emergencies and restrictions on medication abortion, and it requires an ultrasound before an abortion and parental consent for minors. But the 15-week ban did not repeal the 1864 law, the state Supreme Court found, and "is predicated entirely on the existence of a federal constitutional right to an abortion," which was struck down with the Dobbs v. Jackson Women's Health Organization decision by the U.S. Supreme Court in 2022.
"Absent the federal constitutional abortion right, and because [the 15-week abortion ban] does not independently authorize abortion, there is no provision in federal or state law prohibiting [the 1864 abortion ban's] operation. Accordingly, [the 1864 ban] is now enforceable," the Arizona Supreme Court Justice John Lopez wrote in the opinion.
The Arizona Supreme Court concluded that abortion policy is a matter to be decided either by the legislature or by citizens in the ballot initiative process. The court said it would not "make this weighty policy decision because such judgments are reserved for our citizens."
"[W]e merely follow our limited constitutional role and duty to interpret the law as written," Lopez wrote.
The court also stayed the enforcement of the 1864 ban for 14 days, to enable the parties to return to the trial court to pursue other matters in the case. Beyond the stay, there is also a delayed enforcement agreement in place that was signed by former Arizona Attorney General Mark Brnovich that effectively extends the stay for another 45 days beyond the 14-day period.
On Wednesday, former President Donald Trump said the state Supreme Court went too far in its ruling. "It's all about state's rights, and that'll be straightened out," Trump said. "I'm sure that the governor and everybody else are going to bring it back into reason and that'll be taken care of, I think very quickly." Gov. Katie Hobbs is a Democrat, and both chambers of the Arizona Legislature are controlled by Republicans.
Arizona Attorney General Kris Mayes, also a Democrat, issued a statement Tuesday calling the ruling "unconscionable and an affront to freedom" and said that "as long as I am Attorney General, no woman or doctor will be prosecuted under this draconian law in this state."
The law says that "a person who provides, supplies or administers to a pregnant woman, or procures such woman to take any medicine, drugs or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless it is necessary to save her life, shall be punished by imprisonment in the state prison for not less than two years nor more than five years."
It dates to before Arizona became a state.
The decision has already garnered criticism from both Democrats and Republicans.
"I signed the 15-week law as Governor because it is thoughtful conservative policy, and an approach to this very sensitive issue that Arizonans can actually agree on. The ruling today is not the outcome I would have preferred, and I call on our elected leaders to heed the will of the people and address this issue with a policy that is workable and reflective of our electorate," Doug Ducey, Arizona's former Republican governor, posted on X.
Republican Senate candidate Kari Lake issued a statement opposing the ruling, and she called on Hobbs and the state legislature "to come up with an immediate common sense solution that Arizonans can support." Lake's statement shows how fraught the issue has become for Republicans, since Lake had in the past referred to abortion as the "ultimate sin" and when Texas passed its restrictive abortion law, Lake posted on social media "well done Texas. Arizona is next."
Her challenger, state Sen. Ruben Gallego, called the ruling "devastating for Arizona women and their families" and sought to tie the decision to Lake and Republicans.
There are currently efforts underway to enshrine abortion rights into the Arizona state constitution. Arizona for Abortion Access announced last week that they had enough signatures to put their amendment on the ballot.
"And so you know, there are opportunities for voters to correct this and you've seen every state since Dobbs that when voters have an opportunity to weigh in they vote in favor of abortion," Jill Habig, President of Public Rights Project, which represented one of the parties in the case from Tuesday's ruling told CBS News. "But in the meantime, you have tens of thousands of people who are pregnant or will become pregnant who will either need to drive or fly or get sick in order to receive care and their health will be very much at risk."
The Arizona ruling comes on the heels of a decision from the Florida Supreme Court allowing a six-week abortion ban to go into effect and underscores the increased politicization of abortion rights since the Supreme Court overturned Roe versus Wade, effectively handing the issue back to the states.
President Biden's reelection campaign already denounced the decision, as his campaign has pushed to make abortion rights a central part of their administration and reelection bid.
In a reaction to the ruling, the Biden campaign posted on X that it was "made possible by Trump ending Roe v. Wade," a reference to Trump's nomination of three conservative justices to the Supreme Court during his presidency.
