Top Arizona court upholds near-total ban on abortion

The top court in Arizona has ruled that a 160-year-old near-total ban on abortion is enforceable, thrusting the issue to the top of the agenda in a key presidential election swing state.

The ruling – allowing for doctors to be jailed for up to five years – was the latest in a series of statelevel measures on the deeply divisive issue of reproductive rights, which was expected to play an outsize role in November’s contest between US President Joe Biden and his Republican challenger Donald Trump.

In a statement issued almost immediately after the Arizona news broke, Biden slammed the “cruel ban”.

“This ruling is a result of the extreme agenda of Republican elected officials who are committed to ripping away women’s freedom,” he said.

Citing the US Supreme Court’s 2022 ruling that ended a nationwide guarantee of abortion access and instead allowed states to set their own rules, Arizona’s top court said a local law dating from the American civil war era could stand.

Arizona was a territory, not a state, in 1864 when original legislation was drafted banning all abortions except those performed to save the life of the woman – and imposing up to five years in prison for anyone carrying out the procedure.

In its ruling, the state’s supreme court said the legislature had never explicitly encoded a right to abortion in local law, and the right had existed only because of now-removed federal rules.

“The legislature has demonstrated its consistent design to restrict elective abortion … and an unwavering intent since 1864 to proscribe elective abortions,” the ruling said. “To date, our legislature has never affirmatively created a right to, or independently authorised, elective abortion.”

In practice, Arizona had permitted abortions up to the 15th week of pregnancy.

The ruling included a 14-day stay on enforcement to allow for legal challenges.

Beyond the stay, its fate is far from clear: attorney general Kris Mayes, a Democrat, vowed she would not enforce a ruling she called an “unconscionable … affront to freedom”.

“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.

“And let me be completely clear, as long as I am attorney general, no woman or doctor will be prosecuted under this draconian law in this state.”