Arizona court OKS 1864 law criminalizing most abortions
PHOENIX — Arizona can soon enforce a long-dormant 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 long-dormant law that predates 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, but the majority ruling doesn’t explicitly say that. The 1864 law carries a sentence of two to five years in prison for doctors or anyone else who assists in 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 doing the procedure in the first 15 weeks of pregnancy.
State Sen. Arizona Eva Burch, who dramatically announced on the Senate floor last month that her pregnancy wasn’t viable and she was getting an abortion, criticized GOP lawmakers who expressed support for the ban.
“We know that every single Republican in the Arizona House and Senate supported this territorial total ban on abortion — they signed an amicus brief affirming that very fact,” Burch said. “This moment must not slow us down.”
Burch noted that Arizonans will be able to vote this fall 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 bans on abortion at all stages of pregnancy, with limited exceptions. Two states ban the procedure once cardiac activity can be 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 in June 2022, Arizona 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, had urged the state’s high court to side with the Court of Appeals and hold the 1864 law in abeyance.
A proposal before the Arizona Legislature that would repeal the 1864 law hasn’t received a committee hearing this year.
Former Arizona Gov. Doug Ducey, a Republican who signed the state’s current law restricting abortion after 15 weeks, posted on X saying Tuesday’s ruling wasn’t the outcome he would have wanted.
President Joe Biden called the 1864 Arizona law cruel in a statement.