Arizona Supreme Court upholds Civil War-era abortion ban

The Arizona Supreme Court on Tuesday upheld a Civil War-era law that nearly bans all abortions in the state.

The decision could play a major factor in the 2024 election, in which voters will likely weigh whether abortion rights should be added to the state’s constitution.

Upholding the 160-year-old law, passed before Arizona’s statehood, means that it will be “prospectively enforced” by April 23. The law bans abortions with exceptions in cases in which the mother faces immediate life-threatening conditions, and it mandates a prison sentence of between two and five years for a healthcare provider performing the procedure unlawfully.

Legal background

Arizona has been ground-zero for state-level debates on abortion access following the federal Supreme Court’s overturning of national-level protections for abortion in the Dobbs v. Jackson Women’s Health Organization decision in June 2022.

Following the unprecedented leak of the drafted Dobbs opinion in May 2022, the GOP-majority in the state legislature passed a prohibition on abortion after 15 weeks gestation, with exceptions for permanent injury or life-threatening emergencies. Legal controversies quickly emerged following the Dobbs decision over the implementation of the 15-week ban versus an 1864 law entirely banning abortion except in instances of “immediate” life-threatening conditions for the mother.

The 1864 law was permanently enjoined following the Roe v. Wade decision in 1973, opening the door for nearly 50 years of state-level legislation and regulation governing abortion under federal protections.

The High Court heard oral arguments in the case against the 1864 law in December from anti-abortion physician Eric Hazelrigg, who runs crisis pregnancy centers in the Phoenix area.

Hazelrigg’s attorney, Alliance Defending Freedom counselor Jake Warner, argued that the 2022 law does not need to conflict with the 1864 statute. Read in conjunction, the state’s 15-week ban would prohibit every abortion except to save the mother’s life as mandated by the 1864 statute. After 15 weeks, the caveat in the 2022 law would begin, meaning that the mother must face an “immediate” life-threatening condition to receive an abortion.

Warner argued that not all health conditions constitute an emergency under the 15-week law. For example, Warren argues that an “immediate” need for an abortion would be an emergent early rupture of the gestational sac, but the need for long-term cancer treatment is life-threatening but not legally “immediate.”

Court acknowledges the “unusual” circumstances

The court emphasized “the unusual nature of the statutory interpretation” required in the case, noting that the 1864 statute was never overturned by the legislature following Roe.

But because the 15-week abortion ban was enacted before the official overturning of Roe, the Court interpreted the law as “not a legislative attempt to preserve a right to abortion in Arizona” but instead “a significant legislative restriction on elective abortion.” As such, it could not override the 1864 statute and “survive Roe’s demise.”

Although several states before Dobbs had passed laws for abortion bans to go into effect immediately following the Supreme Court’s eventual overturning of Roe–known as a trigger provision or a trigger ban–the 2022 Arizona law did not have such a provision.

Abortion on the 2024 ballot in Arizona

“Today’s ruling is devastating,” Mari Urbina, managing director at pro-abortion rights mobilizing group Indivisible, told the Washington Examiner. “It’s also wildly out of step with where Arizona voters are at. Arizona Republicans in the courts and in public office have been playing political football with abortion rights, and voters are tired of it.”

Abortion advocates are working on a petition to place an amendment on the ballot for the 2024 election that would make access to the procedure a “fundamental right.”

Several reproductive rights groups, including ACLU of Arizona, Planned Parenthood Advocates of Arizona, and Reproductive Freedom for All (formerly NARAL), must submit nearly 384,000 citizen signatures by July 3 for the measure to appear on the 2024 ballot.

Urbina said that her organization has recruited over 1,600 volunteers to gather voter signatures before the deadline.

“In the post-Dobbs era, the reality is that protecting abortion access as a fundamental right is enormously important and energizing,” said Urbina. “The abortion fight has meant we’ve needed to deepen organizing infrastructure across the state, and those volunteers are now more fired up than ever.”

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