Arizona Court Rules that a 160-Year-Old Law Outlawing Abortion is Enforceable

Arizona’s Supreme Court has ruled that an 1864 law outlawing abortion is still enforceable. That could mean all abortion clinics in the state will be forced to shut down, though there is currently a hold on enforcing the law which means there will likely be lawsuits filed before anything else happens.

Arizona’s highest court on Tuesday upheld an 1864 law that bans nearly all abortions, a decision that could have far-reaching consequences for women’s health care and election-year politics in a critical battleground state.

The 1864 law, the court said in a 4-to-2 decision, “is now enforceable.” But the court put its ruling on hold for the moment, and sent the matter back to a lower court to hear additional arguments about the law’s constitutionality.

Because of a 14-day stay and another 45-day delay before enforcement, it will very likely be weeks before the law goes into effect.

The Arizona Supreme Court said that because the federal right to abortion in Roe v. Wade had been overturned, there was no federal or state law preventing Arizona from enforcing the near-total ban on abortions, which had sat dormant for decades.

Legally this makes sense. Abortion is not constitutional protected (and never should have been), therefore state laws regulating abortion are now valid. Granted 1864 is a very long time ago but the law was also reaffirmed twice in the early 20th century. Also, I don’t remember progressives being all that bothered when the 1799 Logan Act was used as a justification for investigating Michael Flynn. The shock that old laws might still be on the books seems a bit forced.

The current Arizona Attorney General immediately vowed not to enforce the law but today’s decision likely means she can be forced to if conservatives sue.

Attorney General Kris Mayes, a Democrat, said moments after the ruling that she would not enforce the law.

“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,” Mayes said in a statement, adding that the decision was “unconscionable” and “an affront to freedom.”

On the other hand, this could also benefit Democrats who have been trying to put an abortion measure on the ballot this year. Arizona already had a 15-week limit on abortion. The ballot initiative, if passed, would make abortion legal through about 24 weeks.

One immediate effect of the ruling could be more support for a potential ballot measure in the works for this year. Advocates say they’ve already got more than 500,000 signatures, well above the threshold of 383,923 signatures needed by an early July deadline.

The state Supreme Court’s ruling puts a stark choice before voters: Choose the new reproductive rights measure or watch abortion policy turn back to the 19th century…

“We were expecting the worst and hoping for the best, but we have to keep moving forward,” said Chris Love, a spokesperson for the ballot measure known as Arizona for Abortion Access. “We have an opportunity to change things at the ballot in November.”

Joe Biden has already weighed in:

“Millions of Arizonans will soon live under an even more extreme and dangerous abortion ban, which fails to protect women even when their health is at risk or in tragic cases of rape or incest,” Biden said in a statement. He called the ban “cruel” and “a result of the extreme agenda of Republican elected officials who are committed to ripping away women’s freedom” and vowed to “continue to fight to protect reproductive rights.”

VP Harris has released a video statement.

The Arizona Supreme Court ruling allows an 1864 abortion ban to go into effect. There are no exceptions for rape and incest, and it threatens doctors and nurses with prison time.

It does not have to be this way. Congress must restore the protections of Roe. pic.twitter.com/JGdA7RNI2W

— Vice President Kamala Harris (@VP) April 9, 2024

As for Arizona Gov. Katie Hobbs, she is demanding that the Republican legislature repeal the 1864 law but so far there is no indication that’s going to happen. Republicans should consider it carefully though because going from a 15-week limit to a total ban (except for the life of the mother) sounds like a way to ensure a blue wave sweeps the state this fall. And if that happens the 15-week limit will probably fall along with the 1864 law.

Here’s Gov. Hobbs reaction to the ruling.