The Supreme Court of Arizona has decreed that a near-total abortion ban from 1864, predating Arizona’s statehood, can be enforced.
This law, which could lead to a prison sentence of two to five years for abortion, except when the mother’s life is in danger, could potentially close all clinics in the state and have significant implications for women’s healthcare and the forthcoming election.
However, the ruling might be overturned by Arizona voters in a referendum scheduled for November.
This decision comes after months of legal debates about whether the pre-statehood law could be revived after being dormant for years. Many contended that it had been effectively superseded by years of state legislation, including a 2022 law permitting abortions until 15 weeks of pregnancy.
The state’s highest court agreed to review the case in August 2023 after the conservative law firm, Alliance Defending Freedom, appealed a lower court ruling that upheld the more recent law. On Tuesday, in a 4-2 ruling, the state supreme court reversed that decision, stating that the 1864 law “is now enforceable” due to the absence of federal or state protections for the procedure.
The Alliance Defending Freedom and anti-abortion activists celebrated the decision, claiming that the “significant” ruling “will safeguard the lives of countless, innocent unborn children”.
The enforcement of the law has been postponed for 14 days by Arizona’s Supreme Court, and the case has been referred back to a lower court for further arguments.
However, the enforcement of the law remains uncertain.
Last year, Governor Katie Hobbs, a Democrat, issued an executive order assigning the enforcement of abortion law to State Attorney General Kris Mayes, also a Democrat, who has vowed not to prosecute Arizonans for obtaining or performing abortions.
Ms. Mayes reaffirmed that promise on Tuesday, labeling the law as “draconian”. She criticized the decision to reinstate a law from a time when Arizona was not a state, the Civil War was ongoing, and women did not have the right to vote, calling it a “blot on our state’s history”. This criticism was quickly echoed by the White House and other prominent Democrats.
The ruling also raised concerns among some Arizona Republicans.
Kari Lake, a close ally of Donald Trump and a Republican candidate for the state’s seat in the US Senate, expressed her opposition to the decision in a statement. She urged Governor Hobbs and the state legislature to find a “common sense solution”.
Ruben Gallego, Ms. Lake’s Democratic opponent, highlighted in a statement on Tuesday that Ms. Lake had previously supported the ban, referring to a 2022 interview where she praised the 1864 law as “great”. He added, “Today’s ruling is devastating for Arizona women and their families.”
Abortion access, which enjoys broad support among the American public, has helped Democrats outperform in local and state elections since the US Supreme Court overturned a landmark legal decision that protected reproductive rights nationwide.
The issue is expected to influence the election results again in November, with Democrats hoping it gives them an edge in battleground states like Arizona.
Tuesday’s ruling will undoubtedly heighten the stakes for a state ballot initiative aiming to protect abortion rights until 24 weeks of pregnancy. Activists in the state claim they have already gathered the required number of signatures to put the question to voters this fall.
In the nearly two years since Roe was overturned, activists advocating for expanded abortion access have won all seven ballot initiatives related to the issue, even in Republican-controlled states.
Florida’s Supreme Court approved another abortion referendum a week ago. If passed, Florida voters would overturn the state’s six-week ban and enshrine broad abortion access in the state’s constitution.
