Arizona Supreme Court upholds 1864 law, making near-total ban on abortion

April 9 (UPI) -- The Arizona Supreme Court is upholding a law from 1864, cementing a near-total abortion ban across the state.

The 4-2 court ruling issued Tuesday finds the 160-year-old law is still enforceable, making abortion a felony.

Anyone convicted of performing or helping a woman obtain the procedure is subject to a prison term of between two and five years.

Arizona's law does contain an exception in circumstances in which an abortion is necessary to save the life of the mother.

The law was codified in 1901 and again in 1913, after Arizona became a state.

Arizona Attorney General Kris Mayes said in a statement Tuesday, that no person will be prosecuted under the state's now-enforceable abortion law while she remains in office. Photo courtesy of Arizona Attorney General's office

At the end of 2022, the State Court of Appeals ruled Arizona was not able to enforce the regulation. That ruling came after Arizona Attorney General Mark Brnovich asked a state judge to allow the territory-era law to be enforced, after Roe vs. Wade was overturned by the U.S. Supreme Court's Dobbs vs. Jackson Women's Health decision.

"The decision made by the Arizona Supreme Court today is unconscionable and an affront to freedom. Make no mistake, 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. The Arizona Court of Appeals decision, which the Supreme Court has struck down today, was well reasoned and aligned with how courts harmonize different legislation," Arizona Attorney General Kris Mayes said in a statement issued on her website.

The law is set to become enforceable 14 days following Tuesday's ruling by the state Supreme Court. However, it remains to be seen how stringently it will be enforced.

"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. 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," Mayes said in the statement.

"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."

The Arizona Abortion Access Act is widely expected to be added to the ballot for the November election.

In a statement from the White House, President Joe Biden said, "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."

Saying the ruling was a result of the extreme agenda of Republican elected officials who are "committed to ripping away women's freedom," Biden noted that the law being used to enforce the ban was created before Arizona was a state and before women there had the right to even vote.