Arizona Supreme Court rules state must adhere to century-old law banning nearly all abortions

CNN
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In a historic decision Tuesday, the Arizona Supreme Court ruled the state must adhere to a 160-year-old law barring all abortions except in cases when “it is necessary to save” a pregnant person’s life – a significant ruling that will make a Civil War-era abortion law enforceable in the state.

The law can be traced back to as early as 1864 – before Arizona became a state – and was codified in 1901. It carries a prison sentence of two to five years for abortion providers – and it puts Arizona among the states with the strictest abortion laws in the country, alongside Texas, Alabama and Mississippi, where bans exist with almost no exceptions.

The state Supreme Court has delayed enforcement of the law for 14 days to give the plaintiffs an opportunity to pursue other challenges in a lower court if they wish to do so, including whether the law is constitutional.

In a statement shortly after the decision was published, Arizona Attorney General Kris Mayes vowed, “No woman or doctor will be prosecuted under this draconian law in this state.”

“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,” she said.

The 4-2 ruling stems from a case that was revived after the US Supreme Court struck down Roe v. Wade in June 2022, ruling there was no longer a federal constitutional right to an abortion. Arizona’s former attorney general then moved to make the state’s near-total abortion ban enforceable again, but was opposed by Planned Parenthood Arizona, sparking yearslong legal challenges that led to Tuesday’s ruling.

“Physicians are now on notice that all abortions, except those necessary to save a woman’s life, are illegal,” the court majority said in the decision, adding criminal sanctions may now apply for abortions performed after 15 weeks of pregnancy.

Vice Chief Justice Ann A. Scott Timmer was joined by Chief Justice Robert M. Brutinel in dissenting.

The case is the latest high-profile example of the battle over abortion access that has played out across several states since Roe v. Wade was overturned. Since that decision, nearly two dozen states have banned or limited access to the procedure. Providers have warned that restrictive policies on abortion access place patients at risk of poor health outcomes and doctors at risk of legal liability.

“A couple of weeks ago, I had an abortion – a safe, legal abortion here in Arizona for a pregnancy I very much wanted, a pregnancy that failed,” Arizona Sen. Eva Burch said Tuesday at a news conference. “Somebody took care of me. Somebody gave me a procedure so that I wouldn’t have to experience another miscarriage – the pain, the mess, the discomfort. And now we’re talking about whether or not we should put that doctor in jail.”

The state Supreme Court decision is going to have “absolutely unbelievable consequences for the patients in our community and we just … cannot state enough how dire the situation is going to be for the patients who need to access abortion here in Arizona,” Dr. Jill Gibson, chief medical director of Planned Parenthood Arizona, told CNN on Tuesday afternoon.

“Providers need to be able to take care of their patients without fear for legal repercussions and criminalization,” Gibson said.

Arizona’s Democratic Gov. Katie Hobbs also blasted the ruling, telling residents in an online video statement “the fight for our reproductive freedoms is far from over.”

“I’ve personally experienced the anguish of losing a pregnancy and I know it’s outrageous to have the government tell you that the best decision for your health or future could now be considered a crime,” Hobbs said. “I will not stop fighting until we have fully secured the right to reproductive healthcare in our state.”

And President Joe Biden said in a statement, “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.”

Supreme Court justices heard opening arguments in the case last December, when abortion rights opponents claimed the state should revert to the near-total ban, and reproductive rights advocates asked the court to affirm a state law passed in 2022 allowing abortions until 15 weeks.

Then-Republican Gov. Doug Ducey signed the law less than three months before the country’s highest court overturned Roe v. Wade. The 2022 law made an exception for medical emergencies and required physicians to file a report with the Arizona Department of Health Services if an abortion is performed after 15 weeks, but did not provide exceptions for cases of rape and incest.

When he signed the law in March 2022, Ducey stated the 2022 law would not override the older law.

After the US Supreme Court ruling, the Arizona Court of Appeals ruled both abortion laws in the state must be reconciled, or “harmonized,” and that abortion is legal through 15 weeks when provided by licensed physicians in compliance with the state’s other laws and regulations, CNN has previously reported.

The state Supreme Court was asked for clarity following months of uncertainty and legal wrangling over which law should apply in the state.

Meanwhile, Arizona for Abortion Access, a group of abortion rights organizations, announced last week it had gathered enough signatures for a November 2024 ballot measure that would ask voters to enshrine abortion rights in the state’s constitution.

The push is part of a massive effort to get abortion on the 2024 ballot in several states, a move abortion rights advocates are hopeful will restore some power to voters rather than state courts.

This story has been updated with additional information.