Arizona's 1864 abortion ban not enforceable until mid-August, state Supreme Court says

The Arizona Supreme Court has delayed enforcement of a 160-year-old abortion ban until mid-August, giving Democratic Attorney General Kris Mayes time to consider appealing the case to the nation's top court.

The court's Monday ruling brings some clarity to confusion about the timeline of enforcement that has rattled providers ever since the justices upheld the ban in early April with a 4-2 decision.

The ruling makes clear the ban cannot be enforced until after Aug. 12. Combined with a separate court order, that could mean the ban repealed by the Legislature earlier this month is never enforced — though that depends on when lawmakers finish their work for the year and may be subject to further legal challenges.

"I continue to believe this case was wrongly decided, and there are issues that merit additional judicial review," Mayes said in a statement. "I will do everything I can to ensure that doctors can provide medical care for their patients according to their best judgment, not the beliefs of the men elected to the territorial legislature 160 years ago."

'Unjust delay': Abortion opponents want Arizona Supreme Court to reject delay in 1864 ban

Planned Parenthood Arizona said after the court's ruling it would continue providing abortions up to 15 weeks of pregnancy at its clinics in the state "for the next several months."Mayes on April 30 asked the court to delay by 90 days when it issued its mandate, a procedural step that is the final order in a case. The Attorney General's Office wanted the delay while it weighed whether to ask the U.S. Supreme Court to take the case, on grounds that the state's top court relied on a piece of Arizona law another federal judge had deemed "unconstitutionally vague."

The 90-day stay will allow her office to "consider the best legal course of action to take from here," Mayes said Monday. Ninety days is the longest delay allowed under Arizona court rules, though that can be lengthened with court approval.

Planned Parenthood Arizona went to the court a day later, on May 1, asking the justices to delay the mandate to avert a pause in abortion access. Since the court's ruling upholding the ban relied on deciphering the intent of lawmakers, Planned Parenthood argued the Legislature's intent was clear when it voted to repeal the ban May 1.

But Alliance Defending Freedom, which won the case and defended the ban before the Arizona Supreme Court, said the intent was clear: Not enough lawmakers supported repealing the ban to do so immediately, so the ban should go into effect at least for a time. Bills passed by the Legislature only go into effect immediately if they have an emergency clause and win support of 2/3 of lawmakers. Repealing the ban fell well short of that mark.

The Alliance Defending Freedom represents Dr. Eric Hazelrigg, medical director of Choices Pregnancy Center, and Dennis McGrane, Yavapai County attorney. It asked the court to allow the ban to be enforced until the repeal goes into effect, which is 90 days after the Legislature finishes its work for the year.

In a statement, Alliance Defending Freedom Senior Counsel Jake Warner said the organization was "deeply saddened" by the Legislature's vote to repeal.

"And though the court paused its judgment, we will continue working to protect unborn children and promote real support and health care for Arizona families," Warner said.

Monday order could bridge gap to repeal

The Arizona Supreme Court order issued Monday and signed by Chief Justice Robert Brutinel denies the request from Planned Parenthood, and does not preempt any other requests to delay enforcement from being filed. Brutinel was one of two justices on the court who dissented from the majority opinion upholding the ban.

The case challenging the abortion ban first began in the early 1970s, but was put on hold after the U.S. Supreme Court established a right to an abortion in the landmark ruling Roe v. Wade. When that precedent was overturned in 2022, it opened the door for enforcement of the Arizona law that first appeared before Arizona was granted statehood but was affirmed by lawmakers multiple times since.

The ban prohibits abortions at any point of pregnancy except to save the life of the mother and threatens a two-to-five year prison sentence for providers. The Arizona Supreme Court was asked to consider whether that ban conflicted with a 2022 law passed by the Republican-majority Legislature that prohibited most abortions after 15 weeks of pregnancy.

The court ruled on April 9 that the ban dating to 1864 could be enforced, leaving Arizona with one of the five most restrictive abortion laws in the nation.

Earlier this month, the Arizona Legislature repealed the ban and Gov. Katie Hobbs signed the repeal on May 2. That won't take effect until 90 days after lawmakers finish their work, a date that is uncertain.

Abortion rights advocates and a few opponents have said a separate Maricopa County Superior Court ruling, which includes a delay of enforcement for 45 days after the Arizona Supreme Court issues its mandate, would also apply. Doing the math, that means the ban may not be enforceable until late September, which could be late enough for the repeal to take effect.

In eight of the last 10 years, laws went into effect before Sept. 26, the date Mayes said is the earliest the ban could take effect.

When the 1864 ban is officially repealed, it will leave behind the law banning abortion after 15 weeks of pregnancy with few exceptions later in gestation.

Arizonans are likely to vote in November on a ballot measure that would create a right to an abortion in the state Constitution. The measure would allow abortions up to fetal viability, which is generally around 24 weeks, and establish other provisions. Supporters argue voters should approve the measure in part to end the turbulence around abortion policy that has endured for nearly two years since Roe v. Wade was overturned.

“Another day, another ruling, another example of why we must pass the Arizona Abortion Access Act," campaign spokesperson Chris Love said Monday.

"Arizonans deserve to know our rights are ensured and protected, not constantly in flux based on the whims of politicians or the outcomes of endless lawsuits," Love said.

Reach reporter Stacey Barchenger at [email protected] or 480-416-5669.

This article originally appeared on Arizona Republic: AZ abortion ban: Court says 1864 law not enforceable until mid-August