Arizona supreme court upholds 1864 law banning almost all abortions
The Arizona supreme court ruled on Tuesday to let a law banning almost all abortions in the state go into effect, a decision that could curtail abortion access in the US south-west and could make Arizona one of the biggest battlefields in the 2024 electoral fight over abortion rights.
The justices said Arizona could enforce an 1864 near-total abortion ban, first passed before Arizona became a state, that went unenforced for decades after the US supreme court legalized abortion nationwide in the 1973 decision Roe v Wade. However, the justices also ruled to hold off on requiring the state to enforce the ban for 14 days, in order to allow advocates to ask a lower court to pause it again.
Related: Pregnant Arizona lawmaker shares fight to get abortion, highlighting ‘cruel’ laws
The ban can only be enforced “prospectively”, according to the 4-2 ruling. Minutes after the ruling Kris Mayes, Arizona’s Democratic attorney general, vowed not to prosecute any doctors or women under the 1864 ban.
“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 in a statement.
Voters may be able to weigh in on the issue in November: abortion rights supporters in Arizona have spent months gathering signatures for a ballot measure to enshrine abortion rights into the state constitution, and the Tuesday decision raises the stakes for their efforts significantly. If it succeeds, the ballot measure would declare that people in Arizona have a “fundamental right to abortion” and that the state will not try to curb that right before a pregnancy reaches fetal viability, which is generally pegged to about 24 weeks of pregnancy.
Although ballot measures need to amass 383,923 signatures by July to get on the ballot, the organizers behind the Arizona measure announced last week that they have gathered more than 500,000 signatures, and plan to collect more.
Arizona’s governor, Katie Hobbs, a Democrat, said Tuesday was a “dark day” for the state and implored abortion rights supporters to make their voices heard in November.
Hobbs vowed to do everything in her power to preserve access to reproductive care in the state. The governor last year issued a sweeping executive order banning county attorneys from prosecuting women who seek abortions and doctors who perform them.
Asked about the possibility that her directive could be challenged in court following Tuesday’s ruling, Hobbs said: “Bring it on.”
While the long-term impact of the decision on abortion access in Arizona is not yet clear, a number of providers said Tuesday that they will stay open as long as they can. Planned Parenthood Arizona, which operates multiple locations in the state, intends to continue providing abortions as long as the procedure is legal. Thanks to a court order in a separate case, Planned Parenthood appears to be able to legally provide abortions beyond the 14-day window and potentially as late as into May.
“Regardless of today’s decision, what I can tell you is that our doors will remain open,” Angela Florez, president and CEO of Planned Parenthood Arizona, told reporters on a call after the supreme court decision. “We will continue to provide what essential healthcare we can within the limitations of the law, and we hope that supporters will continue to support and that patients will still continue to feel safe in our care.”
Dr Gabrielle Goodrick, a longtime abortion provider in Phoenix, also told the Guardian that her clinic would continue offering abortions, at least through the 14-day window.
“We are not closing. Ever. That’s not a question,” Goodrick said. “I have reassurances from the governor and the attorney general that they’re not going to prosecute, but I need to investigate that further.”
The ruling became a campaign issue almost as soon as it was issued. Kamala Harris quickly laid the blame on Donald Trump, whose three supreme court appointees voted to overturn Roe, paving the way for state-level abortion bans. The revived ban is “a reality because of Donald Trump, who brags about being ‘proudly the person responsible’ for overturning Roe v Wade, and made it possible for states to enforce cruel bans”, the vice-president said in a statement. Harris also warned of nationwide restrictions to reproductive care that could come with a second Trump presidency.
The vice-president will visit Arizona on Friday for a trip that was planned before Tuesday’s decision.
Democrat Ruben Gallego, who is running against the Republican and stalwart Trump supporter Kari Lake to represent Arizona in the US Senate, condemned the law in a statement.
“Our fight against extremist bans like the one enacted today has never been more important – which is why I’m committed to doing whatever it takes to protect abortion rights at the federal level,” Gallego said.
Arizona is one of roughly a dozen states where voters may get a chance to vote directly on abortion rights come November. However, as a key battleground state in the presidential election, the stakes in Arizona are particularly high, since Democrats hope that outrage over Roe’s overturning will also propel their candidates –including Joe Biden – to victory.
Tuesday’s decision is likely to galvanize voters. Several states have held abortion-related ballot measures since Roe fell, and in every state – including Republican strongholds such as Kansas and Kentucky – abortion rights supporters have triumphed.
In a statement, Lake said that she opposed the Tuesday ruling. Lake has previously called abortion “the ultimate sin”, but like many other Republicans in the wake of Roe’s demise and abortion rights supporters’ ballot box successes, has moved to moderate her position on abortion policy.
“I am calling on Katie Hobbs and the statelegislature to come up with an immediate commonsense solution that Arizonans can support,” Lake said. “Ultimately, Arizona voters will make the decision on the ballot come November.”
Until the 1864 ban is enforced, abortion is accessible in Arizona up until 15 weeks of pregnancy. Under the 1864 ban, it is illegal to help “procure the miscarriage” of a pregnant woman. The law only permits abortions to save a woman’s life and does not have exceptions for rape or incest.
The impact of the ruling will reverberate beyond Arizona’s borders. Goodrick told the Guardian last year that many of her patients come from Texas, which has banned almost all abortions since even before Roe fell. Because Texas is home to one in 10 women of reproductive age in the US, Arizona has been a critical release valve for Texans fleeing the state’s abortion bans.
Lauren Gambino contributed reporting
