The Arizona Supreme Court has issued a groundbreaking decision, allowing the enforcement of a long-dormant law that effectively bans nearly all abortions in the state, leading to a significant shift in the legal landscape regarding pregnancy termination. This law, which dates back to before Arizona's statehood, provides no exceptions for cases of rape or incest and permits abortions only when the mother's life is in danger. While the court's majority did not explicitly state that doctors could be prosecuted under the 1864 law, they suggested this could be a possibility.
This decision overturns a previous ruling that stated doctors could not be charged for performing abortions within the first 15 weeks of pregnancy. The law, enacted before Arizona became a state, had been blocked from enforcement shortly after the U.S. Supreme Court's Roe v. Wade decision in 1973, which guaranteed the constitutional right to an abortion. However, after the U.S. Supreme Court overturned Roe in June 2022, then-Arizona Attorney General Mark Brnovich successfully requested that a state judge lift the injunction blocking the enforcement of the 1864 ban.
The Arizona Supreme Court's ruling implies that physicians could face prosecution under the 1864 law, making all abortions except those necessary to save a woman's life illegal. The court noted that additional criminal and regulatory sanctions could apply to abortions performed after 15 weeks of pregnancy, with the law carrying a sentence of two to five years in prison upon conviction. Planned Parenthood Arizona believes criminal penalties will apply only to doctors.
The enforcement of the law will not begin for at least two weeks, but plaintiffs suggest it could be up to two months based on an agreement in a related case to delay enforcement if the justices upheld the pre-statehood ban.
This ruling places the issue of abortion access at the forefront of the 2024 presidential election in Arizona, a battleground state, and could impact partisan control of the U.S. Senate. Democrats have criticized the ruling, attributing the loss of abortion access to former President Donald Trump and his appointment of justices to the U.S. Supreme Court.
President Joe Biden and his allies are focusing on efforts to restore abortion rights, while Trump has refrained from endorsing a national abortion ban, warning that it could lead to losses for the Republican Party. This decision will give Arizona the strictest abortion law among the top-tier battleground states.
The implementation of a near-total ban on abortions is expected to significantly reduce the number of abortions in Arizona, which is currently estimated at about 1,100 monthly. Abortion rights advocates have initiated a campaign to ask Arizona voters to establish a constitutional right to abortion, which would guarantee abortion rights until a fetus could survive outside the womb, typically around 24 weeks. This amendment would also allow later abortions to save the mother's life or protect her physical or mental health.