The Arizona Supreme Court has revived an 1864 criminal ban on abortion.
The Civil War-era law, which predated Arizona statehood by almost a half a century, prohibits abortion at any stage of pregnancy, for any reason other than when “necessary” to save the pregnant person’s life. The ban carries a penalty of up to five years in prison for abortion providers.
The ban will replace Arizona’s 2022 law which banned most abortions after 15 weeks gestation. (That law contained a single exception, for “medical emergencies”; providers who violated it could be charged with a felony and risk losing their medical licenses.)
The legal case, originally brought in the wake of the U.S. Supreme Court’s 2022 Dobbs decision, sought to determine which ban — 1864 or 2022 — would take precedence after the court struck down federal protections for abortion.
In December 2022, the Arizona Court of Appeals upheld the 15-week ban. But by that time, Arizona voters had replaced Mark Brnovich, the Republican attorney general who argued for restoring the 1864 ban, with a Democrat, Kris Mayes, who declined to appeal the court’s decision.
The case could have ended there, but Dr. Eric Hazelrigg, an anti-abortion OB-GYN from Gilbert, Arizona, who petitioned the court to be appointed as a “guardian ad litem” for the state’s “unborn” children, intervened to appeal the lower court decision. Alliance Defending Freedom, the conservative christian litigation shop known for its willingness to take on culture war cases, represented Hazelrigg.
The decision was four to two; all six of the Supreme Court’s justices — four men and two women — were appointed by Republican governors.
The decision could have major electoral consequences: advocates for reproductive rights are working to place a popular referendum on the November ballot that would protect the right to abortion in Arizona. The state is also seen as a critical battleground, one that could decide both the presidential contest and control of the Senate this November.
The Arizona Supreme Court’s decision comes as debate has raged over whether abortion laws should be determined at the state or federal level. Republicans, including Donald Trump, have had a difficult time addressing the issue this election season, feeling the need to placate the party’s far-right base while not alienating the vast majority of Americans who believe in protecting reproductive rights.
Trump on Monday released a video statement insisting he believes that the issue should be up to the states — but the claim is dubious, to say the least. The former president has repeatedly taken credit for killing Roe v. Wade, and has on several recent occasions spoken about implementing a federal ban.
