Abortion rights protesters chant during a pro-choice rally

Abortion rights protesters chant during a pro-choice rally at the Tucson Federal Courthouse in Tucson, Arizona on July 4, 2022.

(Photo: Sandy Huffake /AFP via Getty Images)

Arizona Supreme Court Upholds 1864 Abortion Ban—But Voters Will Get 'Ultimate Say' in November

"Arizona is what happens when abortion policy is, as Donald Trump claims he wishes, left up to the states," said one columnist.

Reproductive justice campaigners in Arizona on Tuesday vowed to make sure voters "have the ultimate say" on abortion rights after the state Supreme Court upheld an 1864 ban that includes no exceptions for pregnancies resulting from rape or incest.

"This is a horrifying ruling that puts the lives and futures of countless Arizonans at risk," said Leah Greenberg, co-founder of progressive advocacy group Indivisible. "It's devastating and cruel—and we're fighting back."

The court ruled that since Roe v. Wade was overturned by the right-wing majority on the U.S. Supreme Court in 2022, no law exists to prevent Arizona from reinstating a measure passed in 1864—before Arizona was even a U.S. state.

The law outlaws abortion care from the moment of conception with exceptions only in cases of a pregnant person who faces life-threatening health impacts. Such "exceptions" have been shown to threaten the health, including reproductive health and future fertility, of pregnant people in several states since Roe was overturned in the Dobbs v. Jackson Women's Health Organization ruling.

Under the Arizona law, doctors who are prosecuted for providing abortion care could face fines and 2-5 years in prison.

State Attorney General Kris Mayes, a Democrat, called the ruling "unconscionable and an affront to freedom."

"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," said Mayes. "This is far from the end of the debate on reproductive freedom, and I look forward to the people of Arizona having their say in the matter. And let me be completely clear, as long as I am attorney general, no woman or doctor will be prosecuted under this draconian law in this state."

Democratic organizer Amanda Litman noted that local prosecutors "have jurisdiction to decide whether or not to press charges on people seeking care under this ban."

Last week, organizers with Arizona for Abortion Access announced that they had collected more than the number of signatures needed to support placing a referendum on a constitutional amendment enshrining the right to abortion care on state ballots in November.

The ruling was handed down in Planned Parenthood v. Hazelrigg, a case that centered on an anti-abortion doctor's appeal of a December 2022 ruling which upheld the state's 15-week abortion ban. Dr. Eric Hazelrigg, who owns a chain of anti-abortion clinics in the state, urged the high court to instead reinstate the 1864 ban.

Planned Parenthood Arizona, Inc. said the "deplorable decision will send Arizona back nearly 150 years."

"This ruling will cause long-lasting, detrimental harms for our communities," said the group. "It strips Arizonans of their bodily autonomy and bans abortion in nearly all scenarios. And it does so following the troubling example of the U.S. Supreme Court in Dobbs: with judges ignoring long-settled precedent and principles of law to reach their preferred policy result."

Columnist Helaine Olen noted that the ruling was handed down a day after former President Donald Trump, now the Republican Party's presumptive 2024 presidential nominee, said states should be allowed to impose "whatever they decide" in terms of abortion restrictions and bans.

"Remember," said U.S. Sen. Elizabeth Warren (D-Mass.). "This is brought to you by Trump. He supports cruel bans like these, and he made them possible by overturning Roe."

The ruling was put on hold for 14 days, and advocates emphasized on Tuesday that abortion care is still legal in Arizona for the time being.

Since Roe was overturned, pro-forced pregnancy legislators in Wisconsin and Michigan have supported imposing abortion bans dating back to 1849 and 1931, respectively. A judge ruled last July in Wisconsin that the 19th-century law did not make abortion care illegal, and Michigan voters approved a constitutional amendment protection abortion rights, clearing the way for the 1931 law to be repealed.

Voters in Florida, where the state Supreme Court last week effectively approved a six-week abortion ban, will also vote on a constitutional amendment on abortion rights in November.

Since 2022, voters in states including Kansas and Kentucky have voted in favor of expanding, rather than restricting, access to abortion.

"With abortion on the ballot in November, anti-choice extremists will feel the power of pissed off women voters," said Rep. Becca Balint (D-Vt.). "No doubt about it."

Kari Lake, the Republican Senate candidate in Arizona, quickly attempted to distance herself from the 1864 ban, saying she was calling on the state Legislature to "come up with an immediate commonsense solution that Arizonans can support."

U.S. Rep. Ruben Gallego (D-Ariz.), who is running against Lake, noted that just two years ago after Roe was overturned, the former TV newscaster and gubernatorial candidate said she was "incredibly thrilled that we are going to have a great law that's already on the books... It will prohibit abortion in Arizona except to save the life of a mother."

"This November," said Gallego, "Kari Lake will find out, yet again, that Arizonans have no interest in politicians who threaten their rights."

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