Arizona’s Highest Court Upholds 19th Century Law on Abortion

PHOENIX — The Arizona Supreme Court held Tuesday that with Roe v. Wade and the federal right to an abortion it once recognized now null and void, there’s no reason Arizona can’t enforce a 160-year-old law that bans nearly all abortions.

The 4-2 decision upheld a law adopted in 1864 — nearly 50 years before Arizona became a state — that outlawed abortion from the moment of conception and made performing the procedure within its borders a felony. 

The ruling also rejected arguments that it should instead uphold the 15-week abortion ban signed into law by then-Gov. Doug Ducey in 2022, in the wake of the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which ended Roe’s protections for women seeking an abortion.

Finally, the justices in Arizona lifted the stay that had been placed on the Civil War-era law, meaning it will go into effect in 14 days.

When it does, obtaining an abortion or helping a woman obtain one will be a felony punishable by two to five years in prison. The only exception is in cases where the procedure is deemed “necessary” to save a pregnant woman’s life.

In addition to its huge impact on women and their private health care decisions, the decision immediately put abortion front and center in this year’s presidential contest in what could be a decisive battleground state.

The issue is credited with helping Democrats exceed expectations in the 2022 midterm elections.

“This [decision] is the direct result of … the president’s predecessor handpicking three Supreme Court justices to overturn Roe v. Wade,” said White House press secretary Karine Jean-Pierre at the top of Tuesday’s press briefing.

Those appointments, and the court’s subsequent ruling in Dobbs, “paved the way for the chaos and confusion we’re seeing play out across the country today,” she said.

“President Biden and Vice President Harris will continue to stand with the vast majority of Americans who support a woman’s right to choose,” Jean-Pierre continued. “And they will continue to fight to protect reproductive rights and call on Congress to pass a law restoring the protections of Roe v. Wade for women in every state.”

Even before Jean-Pierre spoke from the podium in the Brady Briefing Room, the White House had announced Harris will travel to Tucson, Arizona, on Friday “to continue her leadership in the fight for reproductive freedoms.”

“Last month, the vice president visited Phoenix to highlight how extremists in states across the country have proposed and enacted abortion bans that threaten women’s health, force them to travel out of state to receive care, and criminalize doctors,” the White House said in a statement announcing her impending visit to the state, part of her ongoing “Fight for Reproductive Freedoms” tour.

So far this year, that tour has included stops in Wisconsin, California, Georgia, Michigan, Arizona and Minnesota. 

“Since the Supreme Court overturned Roe v. Wade, Vice President Harris has held more than 80 convenings in 20 states while bringing together elected officials, health care providers, students and advocates who are on the frontlines of the fight for reproductive freedom,” the White House said.

Meanwhile in Arizona, Attorney General Kris Mayes, a Democrat, called the state Supreme Court’s decision “unconscionable” and “an affront to freedom.”

“Make no mistake, by effectively striking down a law passed this century and replacing it with one from 160 years ago, the court has risked the health and lives of Arizonans,” Mayes said. “The Arizona Court of Appeals decision, which the Supreme Court has struck down today, was well reasoned and aligned with how courts harmonize different legislation.”

She predicted that the court’s reimposing 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.”

“This is far from the end of the debate on reproductive freedom, and I look forward to the people of Arizona having their say in the matter,” she said.

Mayes also vowed that so long as she is Arizona’s attorney general, “no woman or doctor will be prosecuted under this draconian law in this state.”

Arizona Gov. Katie Hobbs, also a Democrat, called the court’s decision “a dark day in Arizona.”

“We are just 14 days away from one of the most extreme abortion bans in the country,” Hobbs said in a post on the X media platform.

“But my message to Arizona women is this: I won’t rest, and I won’t stop fighting until we have secured the right to abortion,” she said. “That is my promise to you.”

The ruling came just a day after the presumptive Republican nominee for president, former President Donald Trump, stunned some current and former supporters by appearing to back away from the issue of abortion, saying the matter of abortion rights should be left up to the states to decide.

In a lengthy statement emailed to reporters on Monday, Trump thanked the six U.S. Supreme Court justices who made up the Dobbs majority by name, calling them “incredible people, for having the courage to allow this long-term, hard-fought battle [over Roe] to finally end.”

“This 50-year battle over Roe v. Wade took it out of the federal [government’s] hands and brought it into the hearts, minds and vote[s] of the people in each state, it was really something. Now, it’s up to the states to do the right thing,” the former president said.

“My view is now that we have abortion where everybody wanted it from a legal standpoint, the states will determine by vote or legislation or perhaps both,” Trump said. “And whatever they decide must be the law of the land. In this case, the law of the state. Many states will be different, many will have a different number of weeks, or some will have more conservative [restrictions] than others, and that’s what they will be,” he said.

Among Trump’s sharpest critics after the statement was released were former Vice President Mike Pence, and Sen. Lindsey Graham, R-S.C.

Pence on Monday went so far in a social media post as to assert that “Trump’s retreat on the Right to Life is a slap in the face to the millions of pro-life Americans who voted for him in 2016 and 2020.”

Graham, meanwhile, released a statement in which he said he disagreed with Trump’s position that abortion is a states’ rights issue.

“Dobbs does not require that conclusion legally and the pro-life movement has always been about the well-being of the unborn child — not geography,” the senator said.

“The states’ rights only rationale today runs contrary to an American consensus that would limit late-term abortions and will age about as well as the Dred Scott decision. The science is clear — a child at 15 weeks is well developed and is capable of feeling pain,” Graham said.

The Dredd Scott decision, of course, was the U.S. Supreme Court’s 1857 ruling in which it held the Constitution did not extend American citizenship to people of Black African descent, and therefore they could not enjoy the rights and privileges the Constitution conferred upon American citizens.

“I will continue to advocate that there should be a national minimum standard limiting abortion at 15 weeks because the child is capable of feeling pain, with exceptions for rape, incest and life of the mother,” Graham added.

Tuesday’s decision is also expected to result in a surge of support to get a measure enshrining the constitutional right to abortion on the Arizona ballot this fall.

The progressive group Indivisible said it has already collected the 384,000 valid signatures needed by the July 4 deadline, but now it’s hoping to gather as many as 800,000 signatures.

“We are more committed than ever to enshrine this right on the ballot,” members said on the group’s X social media feed. 

Dan can be reached at [email protected] and @DanMcCue