The Arizona Supreme Court has revived an 1864 law that bans abortion in nearly all cases, dealing another blow to reproductive rights in a state that already bans the procedure after the 15th week of pregnancy.
The Supreme Court voted 4-2 to uphold the appeal filed by an anti-abortion obstetrician and a county attorney. Justice John Lopez, who, like all members of the Court, is appointed by a Republican governor, said in the opinion that until today the State Legislature “never created the right or authorized selective abortion.”
“We comply, as we are constitutionally bound to do, with the judgment of the legislature which is accountable and reflects the changing will of our citizens,” he added.
However, the fight for abortion rights in Arizona does not end here. An advocacy group announced last week that it had collected enough signatures to put the issue on a referendum next November to enshrine in the state Constitution the right to abortion until the fetus is deemed non-viable.
Arizona’s Democratic Attorney General Chris Mayes, in a statement, called the decision “immoral and an affront to liberty” and reiterated that, as long as she remains in office, she will not prosecute any doctor or woman based on this “draconian law”.
“Today’s decision to re-enact a law from when Arizona was not a State, the Civil War was raging and women didn’t even have the right to vote, will go down in history as a stain on our State,” he added.
The draconian law of 1864
The 1864 law, enacted before Arizona became a US state, prohibited abortions from the moment of conception in all cases unless the mother’s life was in danger. No exception is made for cases of rape or incest. It provided for a 5-year prison sentence for anyone who performed an abortion.
Planned Parenthood, a nonprofit organization that provides abortion services and health care, had sued the state in 1971, challenging the 19th-century law. A judge ruled in favor of Planned Parenthood and blocked that law after the Supreme Court’s landmark 1973 decision in Roe v. Wade recognized the constitutional right to abortion and legalized the procedure at the federal level.
In March 2022 Arizona’s then-governor, Republican Doug Ducey, signed a new law that banned abortions after the 15th week of pregnancy. Like the 1864 law, it carries a 5-year prison sentence for anyone who performs an abortion or assists a woman to have an abortion. The Supreme Court paved the way for this new law by overturning Roe v. Wade in June 2022. Several states have since enacted abortion restrictions, with Republican support.
US President Joe Biden, who has made the issue of access to abortion a centerpiece of his election campaign, immediately denounced the Supreme Court decision, calling it “inhumane”. Criticizing the ban as “even more extreme and dangerous,” the Democratic president said the decision was the result of “the extreme agenda of Republican elected officials determined to take away women’s freedom.”
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