PHOENIX — The Arizona Supreme Court has made a landmark decision by giving the green light to enforce a long-dormant law that bans nearly all abortions, dramatically changing the state’s legal landscape around terminating pregnancies.
The law, which predates Arizona’s statehood, provides no exceptions for rape or incest and only allows abortions if the mother’s life is in danger. Arizona’s highest court suggested that doctors could be prosecuted under the 1864 law, although the court’s majority opinion did not explicitly say so.
Tuesday’s decision overturned an earlier lower court ruling that concluded doctors could not be sued for performing abortions in the first 15 weeks of pregnancy.
The law was enacted decades before Arizona became a state on February 14, 1912. A court in Tucson had blocked its implementation shortly after the U.S. Supreme Court issued its 1973 Roe v. Wade decision guaranteeing the constitutional right to abortion.
After the U.S. Supreme Court overturned the landmark Roe decision in June 2022, then-Arizona Attorney General Mark Brnovich, a Republican, successfully asked a state judge to lift an injunction that halted enforcement of the 1864 ban blocked.
The state Court of Appeals suspended the law when Brnovich’s Democratic successor, Attorney General Kris Mayes, urged the state Supreme Court to uphold the appeals court’s decision.
The law recommends prosecution for “a person who furnishes, supplies or administers to a pregnant woman, or induces that woman to take any medicine, drug or substance, or uses or employs any instrument or other means, with the intention thereby to cause the miscarriage. of such a woman, unless it is necessary to save her life.”
The Arizona Supreme Court suggested in its ruling Tuesday that doctors could be prosecuted, though judges did not say so outright.
“In light of this opinion, physicians are now aware that all abortions, except those necessary to save a woman’s life, are illegal,” the ruling said. The justices noted that additional criminal and regulatory penalties may apply to abortions performed after 15 weeks of pregnancy.
The law provides for a prison sentence of two to five years upon conviction. Attorneys for Planned Parenthood Arizona said they believe criminal penalties will only apply to doctors.
The Supreme Court said implementation would not begin for at least two weeks. However, plaintiffs say that could take up to two months, based on an agreement in a related case to delay enforcement if judges were to uphold the pre-state ban.
The ruling puts the issue of abortion access at the center of a battleground for the 2024 presidential election and partisan control of the U.S. Senate.
Democrats immediately pounced on the ruling, accusing former President Donald Trump of losing access to abortion after the U.S. Supreme Court ended the nation’s right to abortion.
President Joe Biden and his allies are highlighting efforts to restore abortion rights, while Trump has avoided endorsing a national abortion ban and has warned that the issue could lead to Republican losses. The decision will give Arizona the strictest abortion law among the top-level battleground states.
Trump’s longtime ally and abortion opponent Kari Lake is challenging Democratic U.S. Rep. Ruben Gallego in an Arizona race for the U.S. Senate seat now occupied by Kyrsten Sinema, who is not seeking a second term .
Under a near-total ban, the number of abortions in Arizona is expected to drop dramatically from about 1,100 per month, as estimated by a study by the Society of Family Planning.
Last summer, abortion rights advocates began asking Arizona voters to enact a constitutional right to abortion. If advocates gather enough signatures, Arizona would become the last state to put the issue of reproductive rights directly to voters.
The proposed constitutional amendment would guarantee the right to abortion until a fetus can survive outside the womb, usually around 24 weeks. It would also allow subsequent abortions to save the mother’s life or protect her physical or mental health.
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Lee reported from Santa Fe, New Mexico.