Arizona Supreme Court rules a near-total abortion ban from 1864 is enforceable

PHOENIX — The Arizona Supreme Court ruled Tuesday that a 160-year-old near-total abortion ban still on the books in the state is enforceable, a bombshell decision that adds the state to the growing lists of places where abortion care is effectively banned.

The ruling allows an 1864 law in Arizona to stand that made abortion a felony punishable by two to five years in prison for anyone who performs one or helps a woman obtain one.

The law — which was codified in 1901, and again in 1913 — outlaws abortion from the moment of conception but includes an exception to save the woman’s life.

That Civil War-era law — enacted a half-century before Arizona even gained statehood — was never repealed and an appellate court ruled last year that it could remain on the books as long as it was “harmonized” with a 2022 law, leading to substantial confusion in Arizona regarding exactly when during a pregnancy abortion was outlawed.

protest demonstration abortion rights (Sandy Huffaker / AFP via Getty Images file)

The decision — which could shutter abortion clinics in the state — effectively undoes a lower court’s ruling that stated that a more recent 15-week ban from March 2022 superseded the 1864 law.

The Arizona Supreme Court said it would put its decision on hold for 14 days, writing that it would send the case back to a lower court so that court could consider “additional constitutional challenges” that haven’t yet been cleared up.

Attorney General Kris Mayes, a Democrat, said moments after the ruling that she would not enforce the law.

“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,” Mayes said in a statement, adding that the decision was “unconscionable” and “an affront to freedom.”

Democrats all the way up to President Joe Biden also blasted the ruling.

“Millions of Arizonans will soon live under an even more extreme and dangerous abortion ban, which fails to protect women even when their health is at risk or in tragic cases of rape or incest,” Biden said in a statement. He called the ban “cruel” and “a result of the extreme agenda of Republican elected officials who are committed to ripping away women’s freedom” and vowed to “continue to fight to protect reproductive rights.”

Vice President Kamala Harris announced shortly after the ruling that she would travel to Arizona on Friday “to continue her leadership in the fight for reproductive freedoms."

Responding to questions from NBC News about the Arizona ruling, a spokesperson for Donald Trump's campaign referred only to the former president's comments on Monday that abortion restrictions should be left to states.

“President Trump could not have been more clear. These are decisions for people of each state to make," Trump campaign national press secretary Karoline Leavitt said.

Arizona Gov. Katie Hobbs called for the GOP-controlled Legislature, which is currently in session, to repeal the 1864 ban, though there was no immediate indication that Republican lawmakers in either chamber would take up such an effort.

"We are 14 days away from this extreme ban coming back to life," Hobbs, a Democrat, said at a press conference. "It must be repealed immediately."

While Hobbs said she was "sure" reproductive rights advocates would appeal the ruling in the 14-day window they were given, she also suggested that the best avenue to counter the ruling would be for voters to support abortion rights on the November ballot. A separate, ongoing suit would allow for abortion providers to continue providing services through the 15th week of pregnancy for another 45 days.

"It is more urgent than ever that Arizonans have the opportunity to vote to enshrine the right to abortion in our constitution this November. I’m confident that Arizonans will support this ballot measure, and I’m going to continue doing everything in my power to make sure it is successful," Hobbs said.

In a 4-2 ruling, the court’s majority concluded that the 15-week ban “does not create a right to, or otherwise provide independent statutory authority for, an abortion that repeals or restricts” the Civil War-era ban “but rather is predicated entirely on the existence of a federal constitutional right to an abortion since disclaimed” by the 2022 Dobbs decision that overturned Roe v. Wade.

“Absent the federal constitutional abortion right, and because” the 2022 law "does not independently authorize abortion, there is no provision in federal or state law prohibiting” the 1864 ban.

They added that the ban “is now enforceable.”

Tuesday’s ruling is the latest chapter in a decadeslong saga of litigation in the battleground state over abortion rights.

Reproductive rights groups had sued to overturn the 19th century law in 1971. But when the Roe decision came down in 1973, a lower state court ruled against those groups and placed an injunction on the 1864 ban that remained in effect until the Dobbs decision.

In March 2022, Republican lawmakers in the state enacted the 15-week trigger ban, which, months later — after the Dobbs decision — snapped into effect. The law makes exceptions for medical emergencies but not for rape or incest.

Litigation resumed after that decision as lawmakers on both sides of the issue sought clarity on whether to enforce the 1864 near-total ban or the 2022 15-week ban.

A state appellate court initially ruled that both the 1864 and 2022 laws could eventually be “harmonized,” but also said that the 15-week ban superseded the near-total abortion ban and put on hold large parts of the older law.

The decision also sent shockwaves through the reproductive rights community in Arizona and nationally.

Angela Florez, the president of Planned Parenthood Arizona, one of the state's remaining abortion care providers, said her group would now only be able to provide abortion care through the 15th week of pregnancy — and only "for a very short period of time."

The issue, however, could soon be in the hands of voters.

Abortion rights groups in the state are likely to succeed in their goal of putting a proposed constitutional amendment on the November ballot that would create a “fundamental right” to receive abortion care up until fetal viability, or about the 24th week of pregnancy.

If voters approved the ballot measure, it would effectively undo the 1864 ban that now remains law in the state. It would bar the state from restricting abortion care in situations where the health or life of the pregnant person is at risk after the point of viability, according to the treating health care professional.

That ballot effort is one of at least 11 across the country that seek to put the issue directly in the hands of voters — a move that has the potential to significantly boost turnout for Democratic candidates emphasizing the issue.

In 2024, that could factor heavily into the outcome of both the presidential and U.S. Senate races in Arizona. Biden, whose campaign is leaning heavily into reproductive rights, won the state by just over 10,000 votes four years ago. And the Senate race features a tough battle to fill the seat held by the retiring independent Sen. Kyrsten Sinema, most likely between Democrat Ruben Gallego and Republican Kari Lake.

During her unsuccessful 2022 run for governor in Arizona, Lake said she supported the 1864 law, calling it “a great law that’s already on the books.” But Lake now says she opposes the 1864 law, as well as a federal abortion ban, while also acknowledging that her own views regarding state policy conflict with some voters’ preferences.

In a statement following the decision, Lake said she opposed the ruling, adding that "it is abundantly clear that the pre-statehood law is out of step with Arizonans." She called on state lawmakers to "come up with an immediate common sense solution that Arizonans can support."

"Ultimately, Arizona voters will make the decision on the ballot come November," she added.

Gallego, who is backed by several reproductive rights groups, has said he supports the ballot measure. As a member of the U.S. House, he is among the co-sponsors of the Women’s Health Protection Act, which would create federal abortion protections.

In a video posted to X after the ruling, Gallego said he would, with reproductive rights supporters, "fight all the way to November so we can get abortion rights back for women in Arizona."

Other Republicans in the state who’d previously expressed robust support for Roe being overturned joined Lake in condemning the ruling. Reps. Juan Ciscomani and David Schweikert, who both face tough re-elections this fall, both called on state lawmakers to address the issue “immediately.”

The ruling Tuesday — the second in a swing state on the issue in as many weeks — further highlights the already prominent role abortion rights will play in Arizona and across the country.

Last week, the Florida Supreme Court upheld a 15-week ban on abortion in the state, which effectively meant that a six-week abortion ban, with exceptions for rape, incest and the life of the woman, that Gov. Ron DeSantis signed into law last year will take effect. The state's high court also allowed a proposed amendment that would enshrine abortion protections in the state constitution to appear on the November ballot.

Tuesday's decision, while jarring to reproductive rights groups, wasn’t entirely unexpected. All seven justices on the Arizona Supreme Court were appointed by Republican governors, and during opening arguments in December, they aggressively, but civilly, quizzed attorneys on both sides about the fact that the 15-week ban enacted last year did not feature any language making clear whether it was designed to repeal or replace the 1864 ban.

Only six justices participated in Tuesday’s decision, however, after Justice Bill Montgomery — who previously accused Planned Parenthood of practicing “generational genocide” — recused himself. (The court’s chief justice did not appoint another judge to take the spot, which is an option under Arizona law.)

The abortion landscape in Arizona has been uniquely confusing since Roe v. Wade was overturned.

While the 1864 law had been on hold after the Supreme Court’s 1973 Roe decision, then-Arizona Attorney General Mark Brnovich, a Republican, successfully sued in 2022 to have that injunction lifted following the overturning of Roe, putting the ban back into effect — though a higher court put that ruling on hold.

But after Mayes succeeded Brnovich as attorney general, she announced that she would not enforce the 1864 ban.

That led to suits from anti-abortion groups seeking enforcement of the ban, which ultimately led to the case making its way up to the state Supreme Court.