The Arizona Supreme Court upheld a Civil War-era law on Tuesday that nearly bans all abortions in the state.
The decision could play a major factor in the 2024 election, in which voters will likely weigh whether abortion rights should be added to the state’s constitution.
Upholding the 160-year-old law, passed before Arizona’s statehood, means it will be “prospectively enforced” by April 23. The law bans abortions with exceptions in cases in which the mother faces immediate life-threatening conditions, and it mandates a prison sentence of between two and five years for a healthcare provider performing the procedure unlawfully.
Legal background
Arizona has been ground zero for state-level debates on abortion access following the federal Supreme Court’s overturning of national-level protections for abortion in the Dobbs v. Jackson Women’s Health Organization decision in June 2022.
Following the unprecedented leak of the drafted Dobbs opinion in May 2022, the GOP majority in the state legislature passed a prohibition on abortion after 15 weeks gestation, with exceptions for permanent injury or life-threatening emergencies. Legal controversies quickly emerged following the Dobbs decision over the implementation of the 15-week ban versus an 1864 law entirely banning abortion except in instances of “immediate” life-threatening conditions for the mother.
The 1864 law was permanently enjoined following the Roe v. Wade decision in 1973, opening the door for nearly 50 years of state-level legislation and regulation governing abortion under federal protections.
The high court heard oral arguments in the case against the 1864 law in December from anti-abortion physician Eric Hazelrigg, who runs crisis pregnancy centers in the Phoenix area.
Hazelrigg’s attorney, Alliance Defending Freedom counselor Jake Warner, argued that the 2022 law does not need to conflict with the 1864 statute. Read in conjunction, the state’s 15-week ban would prohibit every abortion except to save the mother’s life as mandated by the 1864 statute. After 15 weeks, the caveat in the 2022 law would begin, meaning that the mother must face an “immediate” life-threatening condition to receive an abortion.
Warner argued that not all health conditions constitute an emergency under the 15-week law. For example, Warren argued that an “immediate” need for an abortion would be an emergent early rupture of the gestational sac, but the need for long-term cancer treatment is life-threatening but not legally “immediate.”
Court acknowledges the ‘unusual’ circumstances
The court emphasized “the unusual nature of the statutory interpretation” required in the case, noting that the 1864 statute was never overturned by the legislature following Roe.
“We conclude that [Arizona’s law] does not create a right to, or otherwise provide independent statutory authority for, an abortion that repeals or restricts [the law], but rather is predicated entirely on the existence of a federal constitutional right to an abortion since disclaimed by Dobbs v. Jackson Women’s Health Organization,” the court wrote in its opinion.
Because the 15-week abortion ban was enacted before the overturning of Roe, the court interpreted the law as “not a legislative attempt to preserve a right to abortion in Arizona” but instead “a significant legislative restriction on elective abortion.” As such, it could not override the 1864 statute and “survive Roe’s demise.”
Although several states before Dobbs had passed laws for abortion bans to go into effect immediately following the Supreme Court’s eventual overturning of Roe, known as a trigger provision or a trigger ban, the 2022 Arizona law did not have such a provision.
“Absent the federal constitutional abortion right, and because [the law] does not independently authorize abortion, there is no provision in federal or state law prohibiting [the law’s] operation. Accordingly, [Arizona’s law] is now enforceable,” the opinion reads.
“Life is a human right, and today’s decision allows the state to respect that right and fully protect life again — just as the legislature intended,” Warner said in a statement following the announcement of the decision. “Life begins at conception. At just six weeks, unborn babies’ hearts begin to beat. At eight weeks, they have fingers and toes. And at 10 weeks, their unique fingerprints begin to form.”
Planned Parenthood Arizona, a party in the case, issued a statement on X calling the decision “deplorable.”
“This ruling will cause long-lasting, detrimental harms for our communities. It strips Arizonans of their bodily autonomy and bans abortion in nearly all scenarios,” Planned Parenthood said. “We will not stop fighting to protect and expand access to reproductive healthcare.”
Abortion on the 2024 ballot in Arizona
“Today’s ruling is devastating,” Mari Urbina, managing director at abortion-rights mobilizing group Indivisible, told the Washington Examiner. “It’s also wildly out of step with where Arizona voters are at. Arizona Republicans in the courts and in public office have been playing political football with abortion rights, and voters are tired of it.”
Abortion-rights advocates are working on a petition to place an amendment on the ballot for the 2024 election that would make access to the procedure a “fundamental right.”
Several reproductive rights groups, including the American Civil Liberties Union of Arizona, Planned Parenthood Advocates of Arizona, and Reproductive Freedom for All (formerly known as NARAL), must submit nearly 384,000 citizen signatures by July 3 for the measure to appear on the 2024 ballot.
CLICK HERE TO READ MORE FROM THE WASHINGTON EXAMINER
Urbina said her organization has recruited over 1,600 volunteers to gather voter signatures before the deadline.
“In the post-Dobbs era, the reality is that protecting abortion access as a fundamental right is enormously important and energizing,” Urbina said. “The abortion fight has meant we’ve needed to deepen organizing infrastructure across the state, and those volunteers are now more fired up than ever.”
