Arizona Supreme Court reinstates Civil War ban on abortions

The Arizona Supreme Court ruled Tuesday that an 1864 law banning abortion in nearly all cases, including cases of rape or incest, is enforceable.

The court considered for months which of two extreme laws would have supremacy: a 2022 law that bans abortion after 15 weeks, which had been in effect, or the 1864 law that bans abortion outright. In either law, there are no exceptions for rape or incest.

That Civil War-era law was enacted nearly 50 years before Arizona was even a state. The law mandates two to five years of prison for anyone aiding an abortion.

Depending on action from the lower courts, the Arizona Supreme Court’s decision could mean the end of legal abortion in Arizona for now.

According to Justice John R. Lopez IV, who wrote the court’s majority opinion, the 2022 law “does not create a right to, or otherwise provide independent statutory authority for, an abortion that repeals or restricts” the 1864 law.

The court, however, has extended a 14-day pause on enforcing the law until a lower trial court can hear additional constitutional challenges to the 1864 law and “determine how to proceed.” It said the lower court could grant a further pause on enforcing the law as the parties involved in the case “pursue remaining issues raised in the trial court.”

The opinion notes, however, that “physicians are now on notice that all abortions, except those necessary to save a woman’s life, are illegal ... and that additional criminal and regulatory sanctions may apply to abortions performed after fifteen weeks’ gestation.”

The court said that the only way the 2022 law would have had supremacy is if it had included a “trigger clause” explicitly repealing the 1864 law upon Roe v. Wade’s demise. “Indisputably, the legislature did not expressly do so,” the ruling reads.

Notably, Lopez wrote that the case is not about, nor did the court consider in its decision, the constitutionality of the 1864 law.

The court heard oral arguments in December 2023.

During oral arguments, attorneys for Eric Hazelrigg, the medical director of a chain of antiabortion clinics across the Valley, urged six of the state’s justices to restore the 1864 law that forbids doctors from performing any abortions except those to save a patient’s life or else face a two- to five-year mandatory prison sentence.

Arizona Attorney General Kris Mayes and Planned Parenthood Arizona, which runs four of the state’s nine women’s health clinics that offer abortions, argued for the preservation of a lower court ruling that determined a 2022 law banning abortions after 15 weeks of gestation should have supremacy.

Six Supreme Court justices issued the 4-2 ruling, while Justice Bill Montgomery recused himself from the case in November following reporting from the Arizona Mirror and The 19th detailing his past inflammatory comments about one of the plaintiffs in the case and his ardent antiabortion positions.

Abortion pivotal issue in Arizona elections

The U.S. Supreme Court overturned Roe v. Wade in 2022, bringing about a chaotic struggle in Arizona and across the nation in which Democrats are working to guarantee abortion rights and Republicans are seeking to thwart laws establishing reproductive freedom.

The right to abortion, contraception and reproductive freedom is one of the central issues in this year’s November elections, including a ballot initiative, the presidential race and the U.S. Senate contest between Kari Lake and U.S. Rep. Ruben Gallego.

On March 13, the GOP-controlled Arizona State Legislature blocked attempts by Democrats to force a vote on guaranteeing contraception access, an indication that the state’s Republicans are opposed to legislation guaranteeing basic freedoms over bodily autonomy.

A ballot initiative that would allow voters to enshrine the right to abortion in Arizona’s constitution has garnered more than 500,000 signatures, according to Arizona for Abortion Access, the group organizing the campaign. That’s likely enough to send the measure to November’s ballot, considering the campaign needs 383,923 valid voter signatures. Organizers still have until July 4 to collect signatures.

The Arizona Abortion Access Act would “establish a fundamental right” for Arizonans to get an abortion any time before viability, which is when a fetus can survive outside of the womb, typically after 23 or 24 weeks of gestation. After the fetus reaches viability, the state would be prevented from creating or enforcing laws that interfere with abortions that are necessary for the pregnant person’s health.

“The people of Arizona are gonna speak loud and clear in November, and they are gonna pass that ballot initiative to enshrine reproductive rights in our constitution,” Mayes said at a campaign event for President Joe Biden in Phoenix on April 3. “They are gonna enshrine it in the constitution so those extremist Republicans in the legislature can’t ever take it away from us.”

‘No woman or doctor will be prosecuted under this draconian law’

Reaction to the court's decision was swift from both sides. Gov. Katie Hobbs, a Democrat, said the ruling was “absolutely devastating for Arizona women and families who will now be forced to live with the threat of a Civil War-era abortion ban.

“Arizonans do not support extreme abortion bans, Arizonans do not want politicians and the government dictating their personal health care decisions, and Arizonans do not want their freedoms taken away,” Hobbs said in a written statement. “With today’s ruling, it is more urgent than ever that Arizonans have the opportunity to vote to enshrine the right to abortion in our constitution this November.”

Shortly after the ruling was announced Tuesday, several prominent Arizona Democrats, including Mayes, Phoenix Mayor Kate Gallego, Democratic Chair Yolanda Bejarano and multiple state legislators, lambasted the court’s decision during a press conference outside the Arizona State Capitol.

Mayes said the ruling “will go down in history as a stain” on Arizona and its Supreme Court.

“It is one of the worst decisions in the history of the Arizona Supreme Court, if not the worst,” Mayes said. “As long as I am attorney general of the state of Arizona, no woman or doctor will be prosecuted under this draconian law.”

Mayes also noted that the attorney general, by Arizona law, has supervisory authority over county attorneys, and she intends to use that authority to prevent county attorneys from prosecuting women and doctors under the 1864 law.

She added that the matter was far from settled. “Everything is on the table, and we will pursue every option available to us to ensure that this decision is never implemented in the state of Arizona,” Mayes said. She cited the right to privacy in the Arizona Constitution as one potential avenue to challenge the 1864 law, which her office will consider contesting in lower courts.

Other speakers at the press conference sharply rebuked former President Donald Trump for his starring role in overturning Roe v. Wade, which had settled the legality of abortion nationwide for nearly 50 years.

“There is no one more responsible for bringing us here today than Donald Trump,” Mayor Gallego said. “He appointed Supreme Court justices who overturned Roe v. Wade, setting us back decades. The girls today and young women do not have the rights that we once did because of Donald Trump.”

Gallego added that “the path to the presidency goes through Arizona, and the path to protect abortion rights goes through Arizona.” She said that reelecting President Joe Biden was crucial to stopping government encroachment on fundamental rights over one’s body.

‘Please stop killing us with your arrogance’

State Sen. Eva Burch, a Mesa Democrat and nurse practitioner, gained national attention for delivering a powerful address on the floor of the Senate and telling colleagues that she was going to get an abortion because her pregnancy was no longer viable.

At the press conference Tuesday, Burch said women who have health complications because of pregnancy will be in extreme danger under the 1864 law.

“Please believe me and understand: Women will die. Please stop killing us with your arrogance,” Burch said. “I am just calling out to the people of Arizona and to the people of this country to please consider your loved ones, consider the reality of the consequences of these decisions, and join us, be with us and vote in November up and down the ticket for pro-choice candidates.

“How am I supposed to tell my patients that it’s OK for them to think about getting pregnant right now?” she continued. “This is a hostile and inhospitable environment for people who want to have children. This is the result of Republican political extremists, and we have to break through this.”

Burch added that Republicans don’t seem to be willing to think about how abortion bans actually impact people or that people of all political and religious backgrounds utilize abortion care.

“We have to operate in reality, and the Republicans in the Arizona Legislature have refused to operate in reality for so many years,” she said.

Reaction from across Arizona and the nation

Organizations across the state and nation issued statements about the court’s ruling.

“This ruling will put the lives of untold Arizonans at risk and rob us of our most basic rights,” said Cheryl Bruce, campaign manager for Arizona for Abortion Access.

“Implementing a near-total abortion ban from before women even had the right to vote only further demonstrates why we need politicians and judges out of our health care decisions,” Bruce said. “Now more than ever, our campaign is driven to succeed in passing this amendment and protecting access to abortion in Arizona once and for all.”

Mini Timmaraju, president and CEO of Reproductive Freedom for All, said the “decision will cause untold harm to the people of Arizona, and it’s a painful reminder of exactly why we need to send Rep. Gallego to the Senate and reelect President Joe Biden and Kamala Harris to the White House — so we can lock the federal right to abortion into law and undo these dangerous bans.”

Lauryn Fanguen, a spokesperson for the Democratic Congressional Campaign Committee, urged people to respond at the ballot box this year.

“Today, Arizonans are mourning the loss of their rights," Fanguen said. "In November, they’ll respond at the ballot box and vote against politicians like (U.S. Reps.) Juan Ciscomani and David Schweikert, who are hellbent on controlling women and bringing this country backward.”

Arizona House Democratic Whip Rep. Nancy Gutierrez, a Tucson Democrat, also weighed in after the court's decision.

"The Arizona Supreme Court chose chaos over reason and common sense today," Gutierrez said. "This is outrageous, extreme and devastating because we know Arizonans overwhelmingly support the right to obtain an abortion and other reproductive health care. We must take immediate steps to repeal this archaic and cruel law and to expand our rights. Our caucus stands with the vast majority of Arizonans who support these basic rights, and we won't stop fighting to expand them."

Jared Keenan, legal director of the American Civil Liberties Union of Arizona, said the decision was “shameful” and will have “tragic consequences for Arizonans and their families.”

“Arizonans deserve the right to make personal decisions about their reproductive health care, free from government interference,” Keenan said. “We are devastated by today’s ruling, but we remain committed to defending reproductive freedom in the courts, at the legislature, as well as in communities across the state toward the passage of the Arizona for Abortion Access Act this November. The urgency to enshrine the right to abortion in our state’s constitution has never been more necessary.”

‘This issue should be decided by Arizonans’

Even Republicans released statements criticizing the ruling.

Schweikert, a Scottsdale Republican in a toss-up district, denounced the ruling. “I do not support today’s ruling from the AZ Supreme Court. This issue should be decided by Arizonans, not legislated from the bench,” he tweeted.

In the past, however, Schweikert has supported extreme legislation that defines a child as existing at the moment of fertilization.

Former Gov. Doug Ducey, a Republican who signed the 15-week ban, criticized the decision and said it was not the outcome he would have preferred. Ducey appointed five of the seven justices on the state Supreme Court.

"I signed the 15-week law as Governor because it is thoughtful conservative policy, and an approach to this very sensitive issue that Arizonans can actually agree on," Ducey said on social media. "The ruling today is not the outcome I would have preferred, and I call on our elected leaders to heed the will of the people and address this issue with a policy that is workable and reflective of our electorate."

The ruling was welcome news for some of Arizona’s extreme right-wing organizations.

Arizona Right to Life Chair Ashley Trussell said in a written statement the group was “delighted that the court recognized and upheld Arizona’s long history of protecting unborn babies and their mothers.”

In June 2022, Republican and current U.S. Senate candidate Lake said she was “thrilled” about the 1864 law.

“I’m incredibly thrilled that we are going to have a great law that’s already on the books. So it will prohibit abortion in Arizona except to save the life of a mother,” Lake said. “And I think we’re going to be paving the way and setting course for other states to follow.”

Now, Lake says she opposes it. Lake has frequently changed her message on abortion throughout her years of campaigning.