Arizona must enforce 1864 abortion ban that contains no exceptions for rape or incest, state Supreme Court rules
A 160-year-old Arizona law criminalizing abortions except in cases where the mother’s life is in danger can go into effect, the Grand Canyon State’s highest court ruled Tuesday, teeing up a likely ballot initiative in a closely-watched election battleground.
The centuries-old law, which allows the prosecution of doctors who perform the procedure illegally — with a prescribed penalty of two to five years in prison — and has no carveouts for rape or incest, can be traced back to 1864, 48 years before Arizona was admitted to the Union as a state.
The Arizona Supreme Court determined in a 4-2 decision that the long-dormant law “is now enforceable” following the Supreme Court overturning Roe v. Wade in June 2022.
The law will be stayed for 14 days until it goes into effect.
Arizona Attorney General Kris Mayes quickly issued a statement vowing “no woman or doctor will be prosecuted under this draconian law in this state.” However, local prosecutors could bring charges under the law.
Activists have until July 3 to produce the 383,923 signatures needed to put forward a ballot measure that would amend the state constitution to enshrine a right to an abortion if approved, according to the Arizona Secretary of State’s office.
Already, Arizona for Abortion Access claims to have locked down over 500,000 signatures.
Since Roe v. Wade was overturned, Republicans have been on the defensive over the issue, with pro-life forces suffering losses across the country.
“It is a dark day in Arizona. We are just fourteen days away from one of the most extreme abortion bans in the country,” Democratic Gov. Katie Hobbs declared shortly after the decision was handed down.
“But my message to Arizona women is this: I won’t rest, and I won’t stop fighting until we have secured the right to abortion. That is my promise to you.”
Republican Arizona Senate hopeful Kari Lake, who lost to Hobbs in the 2022 gubernatorial election quickly distanced herself from the decision.
“I speak to more Arizonans than anyone and it is abundantly clear that the pre-statehood law is out of step with Arizonans,” she said in a statement.
“I understand the fear and anxiety of pregnancy and the joy of motherhood,” she said. ” I oppose today’s ruling, and I am calling on Katie Hobbs and the State Legislature to come up with an immediate common sense solution that Arizonans can support.”
The decision came down one day after former President Donald Trump rankled anti-abortion activists by promising that he would relegate abortion policies to the states if elected.
Lake’s main rival in the race that could determine the balance of power in the Senate, Rep. Ruben Gallego (D-Ariz.) quickly blasted the ruling.
“Today’s ruling is devastating for Arizona women and their families. This is not what Arizonans want,” he posted on X.
“This decision rips away the right for women to make their own healthcare decisions with their doctors. I promise you that we will fight this together. And with your help, we will win.”
At the moment, 14 states have abortion bans on the books and six states have gestational restrictions of around six weeks.
Back in March 2022, then-Republican Gov. Doug Ducey signed a 15-week abortion ban into law that he contended wouldn’t override the 19th century statute.
Ducey and his GOP predecessor, Jan Brewer, appointed all seven justices on the state’s high court, which heard arguments in December.