Arizona court revives a 160-year-old law to ban virtually all abortions
Arizona鈥檚 top court revived a law dating to 1864 on April 9 that bans聽abortion聽in virtually all instances, another setback for reproductive rights in a state where the procedure already was barred starting at 15 weeks of pregnancy.
The聽Arizona聽Supreme Court聽ruled聽4-2 in favor of an anti-abortion聽obstetrician and a county prosecutor who took up defense of the law after the state鈥檚 Democratic attorney general had declined to so.
Justice John Lopez, who like all of the court鈥檚 members was appointed by a Republican governor, wrote that to date, the state鈥檚 legislature 鈥渉as never affirmatively created a right to, or independently authorized, elective聽abortion.鈥�
鈥淲e defer, as we are constitutionally obligated to do, to the legislature鈥檚 judgment, which is accountable to, and thus reflects, the mutable will of our citizens,鈥� Mr. Lopez wrote.
The fight over聽abortion聽access in聽Arizona聽is far from over. A group of聽abortion聽rights advocates last week said it gathered enough signatures to put before voters in November a ballot measure that would enshrine in the state鈥檚 constitution a right to an聽abortion聽until fetal viability.
Arizona聽Attorney General Kris Mayes, a Democrat, in a statement called the ruling 鈥渦nconscionable and an affront to freedom,鈥� and stressed that she would not, while in her position, prosecute any doctor or woman under the 鈥渄raconian law.鈥�
鈥淭oday鈥檚 decision to reimpose a law from a time when聽Arizona聽wasn鈥檛 a state, the Civil War was raging, and women couldn鈥檛 even vote will go down in history as a stain on our state,鈥� she said.
The ruling marked the latest legal setback in days for聽abortion聽rights, following a聽ruling last week聽by the Florida Supreme Court that cleared the way for a Republican-backed law banning聽abortion聽after six weeks of pregnancy to take effect.
At issue in the聽Arizona聽Supreme Court case was an 1864 law, enacted before聽Arizona聽became a U.S. state that banned聽abortions except to save the woman鈥檚 life, and imposed a penalty of up to five years in prison for anyone who performs an聽abortion.
Planned Parenthood, which provides聽abortions and other healthcare services, sued the state in 1971 to challenge the 19th century law. A judge ruled in Planned Parenthood鈥檚 favor and issued an order blocking the law following the U.S. Supreme Court鈥檚 landmark 1973 ruling in Roe v. Wade that recognized a constitutional right to聽abortion聽and legalized the procedure nationwide.
In March 2022, the governor at the time, Republican Doug Ducey, signed the new law that聽banned聽abortion聽after 15 weeks. Like the 1864 statute, it carries a penalty of up to five years in prison for anyone who performs or helps a woman obtain an聽abortion.
The U.S. Supreme Court cleared the way for the new law to take effect when it聽overturned Roe聽in June 2022. A number of states since have enacted Republican-backed聽abortion聽restrictions.
In July 2022, the Republican Attorney General Mark Brnovich filed a motion in the Planned Parenthood case to challenge the judicial order that blocked the 1864 law and let prosecutors enforce the ban. A court聽granted that request聽in September 2022.
After Planned Parenthood appealed, a state appellate court in December 2022 once again blocked the 1864 ban from being enforced against doctors, though it allowed enforcement against non-physicians who perform聽abortions. The state鈥檚 newly elected Democratic governor, Katie Hobbs, and attorney general Mayes, declined to appeal further.
That led obstetrician Eric Hazelrigg and Yavapai County Attorney Dennis McGrane to intervene in the case to defend the 1864 law before the state鈥檚 Supreme Court. Mr. Hazelrigg runs a network of crisis pregnancy centers 鈥� facilities where pregnant women are counseled against from having聽abortions.
They are represented by Alliance Defending Freedom, a conservative legal group behind other challenges to聽abortion聽rights including聽an effort聽to restrict access to the聽abortion聽pill.
This story was reported by Reuters.
