ARIZONA Court: State can enforce 1864 law to criminalize abortions
PHOENIX — Arizona can enforce a law criminalizing all abortions except when a mother’s life is at stake, the state Supreme Court ruled Tuesday, opening the door to prosecuting doctors who perform the procedures.
Under the decision, a law predating Arizona’s statehood would take effect. It provides no exceptions for rape or incest, but allows abortions if a mother’s life is in danger. Enforcement can take effect in 14 days.
The ruling suggests doctors can be prosecuted for performing the procedure. The 1864 law carries a sentence of two to five years in prison for anyone assisting an abortion.
Arizona’s high court ruling reviewed a 2022 decision by the state Court of Appeals that said doctors couldn’t be charged for performing the procedure in the first 15 weeks of pregnancy.
State Sen. Arizona Eva Burch, who announced on the Senate floor last month her pregnancy wasn’t viable and she was getting an abortion, criticized GOP lawmakers supporting the ban.
“We know ... every ... Republican in the Arizona House and Senate supported this ... ban on abortion — they signed an amicus brief affirming that very fact,” said Burch. “This moment must not slow us down.”
Burch noted Arizonans will be able to vote on a ballot measure allowing the right to abortion, adding that “the right for reproductive rights is not over in Arizona.”
Currently, 14 states are enforcing abortion bans, with limited exceptions. Two states ban the procedure once cardiac activity is detected, which is about six weeks into pregnancy and often before women realize they’re pregnant.
Nearly every ban has been challenged with a lawsuit. Courts have blocked enforcing some restrictions, including bans throughout pregnancy in Utah and Wyoming.
In Arizona, an older state Supreme Court decision had blocked enforcing the 1864 law shortly after the U.S. Supreme Court issued the 1973 Roe v. Wade decision guaranteeing a constitutional right to an abortion.
After the U.S. Supreme Court overturned Roe v. Wade, state Attorney General Mark Brnovich, a Republican, persuaded a state judge in Tucson to lift the block on enforcing the 1864 law. Brnovich’s Democratic successor, Attorney General Kris Mayes, urged the state’s high court to side with the Court of Appeals and hold the 1864 law in abeyance. Since the U.S. Supreme Court’s 2022 decision ending a right to abortion, most GOP-controlled states have started enforcing new bans and most Democrat-dominated ones have sought to protect abortion access.
A proposal pending before the Arizona Legislature that would repeal the 1864 law hasn’t received a committee hearing this year. “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 Tuesday. Former Arizona Gov. Doug Ducey, who signed the state’s current law restricting abortion after 15 weeks, posted on social media saying Tuesday’s ruling was not the outcome he would have wanted.