Arizona needs to repeal 1864 abortion law

Courts don’t create laws – they enforce them. now, legislature needs to take action

We’re going to start this off by stating the obvious: Abortion is a sensitive issue.

It’s not a topic that people approach lightly – it’s polarizing, personal and very political.

On Tuesday, the Arizona Supreme Court ruled a territorial-era law outlawing abortion except to save the life of the mother is enforceable.

Readers, this law dates back to 1864.

Arizona didn’t become a state until 1912 – 48 years later.

According to USA Today, the law mandates two to five years in prison for anyone aiding an abortion, unless the procedure is deemed medically necessary to save the mother’s life. A law from the same era requiring at least a year in prison for a woman seeking an abortion was repealed in 2021, USA Today notes.

“Physicians are now on notice that all abortions, except those necessary to save a woman’s life, are illegal ... and that additional criminal and regulatory sanctions may apply to abortions performed after fifteen weeks’ gestation,” the ruling reads.

Readers, the world has changed significantly since 1864. Do we want a 19th century law dictating women’s health today – 160 years after the fact?

Nothing in this world is black and white, but we can agree that what applied in 1864 in Arizona, much less the world, does not apply today.

Morals are different – and science is, too.

Arizona Supreme Court Justice John Lopez, writing for the majority, noted that state lawmakers never repealed the old law even after the original Roe decision. That, he said, means it remains valid and enforceable, Capitol Media Services reports.

It’s very easy to make this something polarizing, but ultimately, it appears the decision by the court was based on a legal point – the 1864 law was never repealed.

The court’s job is not to create laws – it’s to interpret them, which is what happened here.

The job of creating laws falls back to the Legislature, or to the voters, who can establish laws of their own with statewide initiatives.

The 1864 law is incredibly restrictive and dangerous – which should be clear to both sides of the abortion argument. Do we really want to return to a world in which women turn to radical solutions to terminate a pregnancy?

Today, in 2024, women have choices – if they have the financial means to pursue those choices. They aren’t limited to abortions in Arizona – especially when California is across the bridge from Yuma County.

But Arizona women should not be forced to leave the state if they want or need an abortion. And what happens to the women who don’t have the means to travel? People have strong opinions on this topic, but ultimately, an abortion should be a decision made between a woman and her doctor.

Arizona has a chance to make this right. The Legislature needs to take the initiative, repeal the 1864 bill, and move forward.