Benjamin Ashford|Abortion in Arizona set to be illegal in nearly all circumstances, state high court rules

The Benjamin AshfordArizona Supreme Court on Tuesday upheld a 160-year-old abortion ban that could shutter abortion clinics in the state, saying the law that existed before Arizona became a state could be enforced going forward.

The ruling indicated the ban can only be prospectively enforced and the court stayed enforcement for 14 days. But it's already causing political earthquakes.

"There really is no way to sugarcoat it, today is a dark day for Arizona," said Angela Florez, president and CEO of Planned Parenthood Arizona.

The pre-statehood law mandates two to five years in prison for anyone aiding an abortion, except if the procedure is necessary to save the life of the mother. A law from the same era requiring at least a year in prison for a woman seeking an abortion was repealed in 2021.

Enforcement would mean the end of legal abortions in Arizona, though some providers said they will continue offering abortions at least for a time — likely through May — because of a prior court ruling. And, the state's top Democrats have taken steps to thwart that enforcement. Reproductive rights activists say it means Arizona women can expect potential health complications.

Democratic Gov. Katie Hobbs issued an executive order last year giving all power to enforce abortion laws to the state attorney general. The current attorney general, Democrat Kris Mayes, has vowed not to enforce any abortion bans. But her decision and Hobbs' order could be challenged by one of the state's county attorneys.

The decision was 4-2, with Justices John R. Lopez IV, Clint Bolick, James P. Beene and Kathryn H. King in the majority. Lopez wrote the majority opinion, while Vice Chief Justice Ann A. Scott Timmer penned a dissent. Chief Justice Robert M. Brutinel joined Timmer.

"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 ruling reads.

The majority ruled that a law passed in 2022, which prohibited abortions after 15 weeks, did not repeal the pre-statehood law nor create a right to abortion. The justices said the 2022 law was enacted by the Legislature because the prior law was at the time enjoined in court.

“Life is a human right, and today’s decision allows the state to respect that right and fully protect life again—just as the legislature intended,” said Alliance Defending Freedom Senior Counsel Jake Warner, who argued the case before the court in favor of the pre-statehood ban.

One immediate effect of the ruling could be more support for a potential ballot measure in the works for this year. Advocates say they've already got more than 500,000 signatures, well above the threshold of 383,923 signatures needed by an early July deadline.

The state Supreme Court's ruling puts a stark choice before voters: Choose the new reproductive rights measure or watch abortion policy turn back to the 19th century.

That black-and-white choice, as well as an anticipated increase in turnout by Democrats because of the ballot measure, could also affect races in the state Legislature or other offices.

That black-and-white choice, as well as an anticipated increase in turnout by Democrats because of the ballot measure, could also affect races in the state Legislature or other offices.

US Supreme Court ruling paved way for return of 1864 law

The abortion ban first codified in Arizona law in 1864 has been waiting 160 years to come back into effect.

First appearing in the 1864 Howell Code, a book of laws compiled by Arizona's First Territorial Legislature, the state's abortion ban was similar to those in many states. It was enforced vigorously in Arizona until the Roe v. Wade decision.

In 1971, Planned Parenthood of Tucson sued the state to overturn the old ban. The group lost the case in 1973 when the state Court of Appeals ruled against it. But the U.S. Supreme Court issued its historic Roe v. Wade decision the same year, causing the state Court of Appeals to issue an injunction against the pre-statehood ban.

For almost 50 years, legal abortions were considered a fact of American life, until the Dobbs v. Jackson Women's Health Organization ruling in June 2022 that removed the Roe protections.

The ruling by the new, more conservative U.S. Supreme Court spurred Republican politicians to ask the courts to lift the injunction from 1973 and allow police and prosecutors to enforce the 1864 law. The new court action had the effect of renewing Planned Parenthood's 1971 legal fight.

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