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AZ Supreme Court Upholds 1864 Territorial Statute Banning Nearly All Abortions

Arizona Democratic lawmakers are urging state residents to support a pro-abortion amendment in this fall’s election.

Abortion rights activist protests during a pro-choice rally near the Tucson Federal Courthouse in Tucson, Arizona, on July 4, 2022.

The Arizona Supreme Court ruled on Tuesday that an 1864 territorial law on abortion, which bans the procedure in almost all circumstances, is enforceable, due to no state law permitting the procedure following the overturn of federal abortion protections two years ago.

In a 4-2 decision, the majority ruled that an abortion law passed in 2022, prior to the federal Supreme Court overturning Roe v. Wade, is not enough to keep abortion rights intact. That law, the state’s high court explained, regulated abortion rights in the state based on past federal standards, and was not a proactive statute enshrining abortion rights.

“Absent the federal constitutional abortion right, and because (the 15-week abortion law) does not independently authorize abortion, there is no provision in federal or state law prohibiting (the 1864 law’s) operation,” the opinion of the court, written by state Justice John R. Lopez IV, stated. “Accordingly, (the 1864 law) is now enforceable.”

“In light of this Opinion, physicians are now on notice that all abortions, except those necessary to save a woman’s life, are illegal,” the court added.

The ban goes into effect within two months.

According to the law, which was first passed during the Civil War and nearly 50 years before Arizona was even a state, abortion is barred at all stages of pregnancy, with no exceptions for rape or incest. Abortion is only permitted in cases where a pregnant person’s life is at risk — but in practice, such exceptions are rarely allowed.

Arizona Gov. Katie Hobbs (D) reacted to the ruling by calling it “a dark day in Arizona.” She encouraged state residents to vote to support pro-abortion candidates, and to support a proposed constitutional ballot initiative that will likely be available for voters to decide on in November.

State Attorney General Kris Mayes (D) also condemned the decision by the state’s high court.

“By effectively striking down a law passed this century and replacing it with one from 160 years ago, the Court has risked the health and lives of Arizonans. Today’s decision to reimpose a law from a time when Arizona wasn’t a state, the Civil War was raging, and women couldn’t even vote will go down in history as a stain on our state,” Mayes said.

“As long as I am Attorney General, no woman or doctor will be prosecuted under this draconian law in this state,” she added.

President Joe Biden, who is seeking to make abortion rights a focal point of his reelection campaign, described the 1864 law as “cruel” and the decision as a “result of the extreme agenda of Republican elected officials who are committed to ripping away” reproductive freedom.

In a press release sent to Truthout, Fairness Project Executive Director Kelly Hall called the decision a “crisis for the people of Arizona.”

“It’s beyond comprehension that the Arizona Supreme Court would allow a total abortion ban that predates Arizona’s statehood to be the law of the land,” Hall added.

Arizona for Abortion Access, the organization leading the effort to collect signatures and place an abortion amendment on the ballot this fall, also reacted to the ruling, stating that:

Implementing a near-total abortion ban from before women could vote only further demonstrates why we need politicians and judges out of our healthcare decisions. Now more than ever, we are driven to pass this amendment and protect access to abortion in Arizona once and for all.

The group believes it has secured more than enough signatures for the measure to be included on the ballot in November. Organizers have attained more than 500,000 signatures, well over the 383,923 signatures needed to get a ballot initiative before voters. While some of these signatures could be invalidated upon review, reaching a higher threshold than was needed will likely mean that the initiative will move forward with more than enough legitimate signatures.

The amendment would establish a “fundamental right to abortion,” legalizing the procedure up to the point of fetal viability — generally seen as being around 22-25 weeks of pregnancy. It would also protect abortion rights for individuals who need the procedure beyond that time frame, allowing individuals to get an abortion to protect their life or health (physical or mental) based on the “good faith judgment of a treating health care professional” at any stage of pregnancy.

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