Arizona Supreme Court lifts stay on 1864 territorial law, banning nearly all abortions

PHOENIX (AZFamily/AP) – The Arizona Supreme Court ruled on Tuesday to return to a pre-statehood territorial law banning abortions in nearly all cases.

The court voted 4-2 to lift the stay on the territorial law, meaning a Civil War-era 1864 law could go into effect in 60 days. There is a 15-day window for a trial court to issue a mandate and another 45 days before any changes are in effect.

The law provides no exceptions for rape or incest, but allows abortions if a mother’s life is in danger.

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 performing the procedure in the first 15 weeks of pregnancy.

Minutes after the ruling dropped, Gov. Katie Hobbs called the news a “dark day for Arizona.”

“Let me be clear, Arizona’s 2022 abortion ban is extreme and hurts women. And the near total Civil War-era ban that continues to hang over our heads only serves to create more chaos for women and doctors in our state,” she said. “I’m devastated by this decision, and I know that many Arizonans are as well.”

Gov. Doug Ducey, who signed the state’s current law restricting abortion after 15 weeks, posted on X, formerly known as Twitter, saying Tuesday’s ruling was not the outcome he would have wanted.

“I signed the 15-week law as governor because it is thoughtful policy, and an approach to this very sensitive issue that Arizonans can actually agree on,” he said.

The court had heard arguments since December about whether a pre-statehood law that bans nearly all abortions should be reinstated.

Justice John R. Lopez IV was one of the Arizona Supreme Court Justices who ruled in favor that Arizona could enforce the 1864 law. Ducey appointed him in 2017.

An older court decision 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, then-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, had urged the state’s high court to side with the Court of Appeals and hold the 1864 law in abeyance.

She called Tuesday’s decision one of the worst in the history of the Arizona Supreme Court. She said the fight is not over and she will do everything in her power to make sure this law is never implemented. Many elected leaders expressed concern that this abortion ban is just the beginning, saying access to IVF and contraceptives is also at risk.

“I refuse to allow extremist county prosecutors to use this abortion ban to lock up women and doctors seeking or providing needed healthcare,” Hobbs said in a news conference after the court’s ruling.

“The decision by the Arizona Supreme Court today is unconscionable and an affront to freedom,” said Mayes. “Today’s decision to re-impose a law from a time when Arizona wasn’t a state, the Civil War was still raging, and women could not vote will go down in history as a stain on our state.”

But pro-life advocates called Tuesday’s ruling a win.

“The Arizona Supreme Court today by majority vote did what courts are supposed to do they interpreted the law they didn’t make law,” said Center for Arizona Policy President Cathi Herrod. “Today was a victory for unborn children, for vulnerable children, and for women.”

What’s next?

Pro-abortion rights group Arizona for Abortion Access announced last week that it had gathered enough signatures, more than 500,000 in total, to put abortion rights on the November ballot.

They need more than 380,000 before the July 3 deadline.

“This number is a testament to how popular reproductive freedom and protecting abortion access are among Arizona voters,” Chris Love, a spokeswoman for the campaign, said in an emailed statement.

The proposal, called the Arizona Abortion Access Act, will add to the state constitution that a woman can get an abortion up to the point of viability, which is around 24 weeks and beyond, if the physical and mental health of the mother is at risk.

Critics previously said the measure would allow for late-term abortions.

“There is no limit,” Cindy Dahlgren, a spokeswoman for It Goes Too Far, a group against the amendment, said last week. “This amendment allows abortion beyond viability for virtually any reason. Abortion is legal in Arizona for up to 15 weeks, that’s almost four months.”

The landmark case carries far-reaching consequences for women’s health and has the potential to shape the upcoming elections in a key swing state that could decide who wins the White House and which political party controls Congress.

The Associated Press and Arizona’s Family Political Editor Dennis Welch contributed to this report.

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