Arizona can enforce an 1864 law that criminalizes nearly all abortions, the court says

PHOENIX — The Arizona Supreme Court ruled Tuesday that the state can enforce its long-dormant law that criminalizes all abortions except when a mother’s life is at stake.

The case examined whether the state is still subject to a law that predated Arizona’s statehood. The 1864 law provides no exceptions for rape or incest, but allows abortions if a mother’s life is in danger. The state Supreme Court ruling reversed a 2022 decision by the Court of Appeals that said doctors could not be charged for performing the procedure in the first 15 weeks of pregnancy.

An older court decision blocked enforcement of the 1864 law, shortly after the U.S. Supreme Court issued the 1973 Roe v. Wade decision guaranteeing a constitutional right to abortion. After the U.S. Supreme Court overturned Roe v. Wade in June 2022, then-Attorney General Mark Brnovich, a Republican, convinced a state judge in Tucson to lift the block on enforcement of the 1864 law. Brnovich’s Democratic successor, Attorney General Kris Mayes, had urged the state Supreme Court to side with the Court of Appeals and suspend the 1864 law. Since the 2022 U.S. Supreme Court decision that ended a nationwide right to abortion, most Republican-controlled states have begun imposing new bans or restrictions and most Democratic-dominated states have sought to protect access to abortion .

Currently, 14 states maintain bans on abortion at all stages of pregnancy, with limited exceptions. Two states ban the procedure once heart activity can be detected, which is about six weeks into pregnancy and often before women realize they are pregnant.

Almost every ban has been challenged with a lawsuit. Courts have blocked enforcement of certain restrictions, including bans during pregnancy in Utah and Wyoming.

A proposal pending in the Arizona Legislature that would repeal the 1864 law did not receive a committee hearing this year. “Today’s decision to reinstate a law from a time when Arizona was not yet a state, the Civil War was raging and women could not even vote will go down in history as a stain on our state,” Mayes said Tuesday.

The judges said the state could begin enforcing the law within 14 days. Former Arizona Governor Doug Ducey, who signed the current state law restricting abortion after 15 weeks, posted on X that Tuesday’s ruling was not the outcome he would have wanted.

“I signed the 15-week law as governor because it is a thoughtful policy and approach to this very sensitive issue that Arizonans can actually agree on,” he said. President Joe Biden called Arizona’s 1864 law cruel.

“Millions of Arizonans will soon live under an even more extreme and dangerous abortion ban that fails to protect women even when their health is at risk or in tragic cases of rape or incest,” he said in a statement. “Vice President Harris and I stand with the vast majority of Americans who support women’s right to choose. We will continue to fight to protect reproductive rights and call on Congress to pass a law that restores the protections of Roe v. Wade.”