Reproductive rights advocates gather on the steps of the Arizona Supreme Court to speak out against a near-total abortion ban from 1864 being considered by the judges on Tuesday, Dec. 12, 2023. The ban includes no exceptions for rape or incest and allows only abortions performed to save the patient’s life. Photo by Gloria Rebecca Gomez | Arizona Mirror

The Arizona Supreme Court ruled to make abortion largely illegal in the Grand Canyon State, reinstating a 160-year-old law that forbids all procedures except those to save a woman’s life.

Justice John R. Lopez IV, writing for the court in a 4-2 split decision, said that a 2022 law allowing abortions up to 15 weeks of gestation depended on the existence of a federal constitutional right to abortion. And since the U.S. Supreme Court eliminated that right in the Dobbs v. Jackson Women’s Health Organization ruling two years ago, that law can’t overrule one first passed in 1864, when Arizona was a territory.

“Absent the federal constitutional abortion right, and because (the 15-week abortion law)? does not independently authorize abortion, there is no provision in federal or state law prohibiting (the 1864 law’s) operation. Accordingly, (the 1864 law) is now enforceable,” Lopez wrote.

And that means abortions are illegal in every case except to save a woman’s life.

“In light of this Opinion, physicians are now on notice that all abortions, except those necessary to save a woman’s life, are illegal…,” Lopez wrote.

Arizona Attorney General Kris Mayes called the ruling “unconscionable” and “and 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,” Mayes said in a written statement. “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.”

The ban will go into effect in 59 days.

Anti-abortion groups celebrated the ruling. Cathi Herrod, president of Center for Arizona Policy, which backed the 15-week law while it was moving through the legislature and is behind many of Arizona’s abortion regulations, said that the high court ruled with an eye toward a neutral interpretation of the law, and not to advance partisan priorities.

“Today’s decision preserves a system designed to be blind to all but the law, and in doing so, it upholds the right of life for all Arizonans.”

Arizona governor responds

In a post on social media site X, formerly Twitter, Gov. Katie Hobbs sounded the alarm over the decision and vowed to continue working to protect access to abortion.

“It is a dark day in Arizona,” she wrote. “We are just fourteen days away from one of the most extreme abortion bans in the country. 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.”

During a news conference held shortly after the ruling was released, the Democrat called on the Republican-led legislature to repeal the 1864 law, saying it was the right thing to do. Two attempts this year to do just that stagnated in the legislature, where the GOP-majority has the power to decide which bills get heard.

But it seems unlikely that Republicans will respond to the renewed request. House Speaker Ben Toma and Senate President Warren Petersen filed an amicus brief in the case advocating for the reinstatement of the Civil War-era law, saying that lawmakers never intended to supersede the ban when they passed the 15-week law.

If Republican lawmakers won’t act, Hobbs said, then Arizona voters can in November, when an abortion access amendment is expected to make it onto the ballot.

“To the people across Arizona who are concerned about the future of abortion rights in our state, who are worried about their bodily autonomy, who don’t want to see the freedom of their wives, sisters and daughters restricted, you can make your concerns known at the ballot box,” she said.

Reproductive rights advocates are concerned that a return to a near-total ban will result in uneven health care access for women, as those who can afford to leave the state to seek abortions elsewhere will do so and women who can’t shoulder the cost will be forced to continue carrying unwanted or dangerous pregnancies. Morgan Finkelstein, who in 2020 was forced to travel to California because of Arizona’s limited abortion providers to receive a selective reduction when one of her twins developed a critical heart defect, said that the experience was “traumatic” and should not have to be endured by anyone.

Hobbs told reporters that, while she expects abortion advocacy groups to help women access the health care they need, she is open to discussing ways to support that effort with other governors, including California’s Gavin Newsom.

Hobbs highlighted her executive order that concentrates prosecutorial authority for abortion law violations in Mayes’ office as the most effective strategy to prevent the criminalization of doctors by “overzealous” prosecutors. And while some county attorneys have signaled an interest in challenging that executive order in court, Hobbs said she is confident in the order’s legal basis.

“Bring it on,” she said. “I would not have issued the executive order if I didn’t think it was legally sound.”

Dr. Gabrielle Goodrick, medical director of Camelback Family Planning, one of a handful of private abortion clinics in the Valley, told the Arizona Mirror that she’s committed to keeping her doors open for the entire 59 days that the ruling is paused.

“It is business as usual, and health care as usual, and we will try to see as many people as we can,” she said.

But Goodrick, who has practiced in Arizona for more than 20 years, said she’s confident the November election will bring change, as voters flock to the polls in response to the “extremist” ruling.

The background

The dilemma arose in the summer of 2022, after the U.S. Supreme Court eliminated the constitutional right to abortion and sent the power to regulate the procedure back to the states. Then-Arizona Attorney General Mark Brnovich went to court to reinstate the 1864 abortion ban, and convinced a trial court judge that the Civil War-era law should be enforced instead of the 15-week ban passed just months earlier.

The consequences for reproductive health care in Arizona were instantaneous: An uncertain legal landscape led the majority of the state’s nine abortion clinics to provide intermittent services for months. The 1864 law carries with it a 2- to 5-year mandatory prison sentence for doctors who perform abortions for any reason other than saving a patient’s life, and the 2022 law punishes doctors with a class 6 felony and a revoked license.

Women were cut off from potentially life-saving care as the abortion rate saw record lows that year. Whereas abortions in Arizona have consistently exceeded 13,000 since 2011, in 2022 that number plummeted to just 11,407 procedures.

With two conflicting statutes on the books, uncertain doctors shutting their doors rather than risk prison time, and state officials vying over which ban to implement, Arizona courts were tasked with figuring out how to make the laws coexist.

Proponents of the near-total ban argued that the 2022 law included a provision that stated it wasn’t meant to repeal any laws that came before it, signifying that the 1864 law should reign supreme. But reproductive rights advocates pushed back, pointing out that if the 1864 law wasn’t overruled by the 15-week law based on that interpretation, then neither were the numerous abortion law restrictions enacted in Arizona in the 50 years since Roe v. Wade was decided. And keeping in place laws that mandate an ultrasound, a 24-hour waiting period and an informational consultation, among other requirements, meant that abortion must be preserved to some extent.

The near-total ban was brought back into play by a Pima County judge who nullified an injunction holding it at bay that was erected in 1973, under the auspices of Roe.

But the Arizona Court of Appeals later ruled that the 15-week ban should supersede its predecessor, with the judges noting that if the GOP-majority legislature had intended to completely outlaw abortion, it should have been done so explicitly instead of passing what amounted to a gestational limit.

Less than two months later, Alliance Defending Freedom, an anti-abortion legal firm, filed an appeal with the Arizona Supreme Court on behalf of Dr. Eric Hazelrigg, the medical director of a chain of Valley-wide anti-abortion pregnancy centers. Hazelrigg was admitted into the case to fill the role of “guardian ad litem”, representing the interests of the unborn in Arizona. The position was added in 1973 when the near-total ban was first challenged.

In a December hearing, Alliance Defending Freedom attorney Jake Warner urged the justices to reverse the appellate court’s decision, saying that the lower court erred when it ruled to permit elective abortions up to 15 weeks under the 2022 law.

Warner argued that both the 1864 near-total ban and the 15-week gestational ban outlaw all but the most life-threatening procedures. Instead, the way to harmonize the two laws is by allowing the exception baked into the 15-week law for “immediately” life-threatening situations to modify the requirements of the 1864 law, he said.

Until 15 weeks, Warner explained, all abortions would be prohibited unless the mother’s life is in danger, as the 1864 law mandates. After the 15-week point, the threshold for obtaining an abortion would be raised, so that only “immediately” life-threatening emergencies would merit a procedure. A cancer patient, Warner said, is facing a life-threatening situation, but not an “immediately” dangerous prognosis, and so they would not be permitted to obtain an abortion to begin treatment.

In a written statement issued after the Arizona Supreme Court’s ruling on Tuesday, Warner called the decision a win for the right to life.

“Life is a human right, and today’s decision allows the state to respect that right and fully protect life again – just as the legislature intended,” he said.

Planned Parenthood Arizona attorney Andy Gaona, meanwhile, rebutted that if the Arizona legislature truly meant to outlaw virtually all abortions, it should have made its intention clearer. GOP lawmakers in Arizona modeled the state’s 15-week ban after the Mississippi law in Dobbs v. Jackson Women’s Health Organization, under the assumption that the U.S. Supreme Court would uphold that law and the Arizona copy could stand.

But Arizona lawmakers left out a key provision from the Mississippi law: a clause which stated that any abortion that complied with Mississippi’s 15-week law but violated any other abortion law was nonetheless illegal. Gaona pointed to that as proof that Arizona lawmakers never intended to completely ban abortion.

While the courts worked through the legal parameters of abortion in Arizona, the election of pro-choice Democrats to statewide offices two years ago dampened the threat of a state ban to some degree.

Gov. Katie Hobbs, who ran on a promise to protect abortion access, issued an executive order in July concentrating the prosecutorial authority for abortion law violations in the Arizona Attorney General’s office. Doing so preemptively barred any of the state’s 15 county attorneys from using Arizona’s abortion laws to take a doctor to court. At least one county attorney, Yavapai’s Dennis McGrane, who joined Hazelrigg in advocating for the 1864 law, has indicated an interest in pursuing abortion law violations. AG Kris Mayes, meanwhile, has vowed never to prosecute a single case.

But the legal strength of Hobbs’ executive order has yet to be tested in court. Shortly after she issued it, county attorneys threatened to mount a legal challenge against it, though none has since materialized.

November 2024: the solution?

Reproductive rights groups are aiming to stave off threats from the court rulings and GOP-backed laws by enshrining abortion access in the state constitution this November. The Arizona Abortion Access Act would guarantee the procedure as a right up to 24 weeks of gestation, in a mirror of the standard in Roe. The act would also include an exception for procedures performed after that time if the doctor considers it necessary to safeguard the life, physical or mental health of their patient.

Because it is a constitutional amendment, the initiative needs to collect 383,923 signatures to qualify for the ballot and be considered by Arizona voters. Earlier this month, the campaign announced it has gathered 500,000 signatures, and it plans to continue collecting more to ensure a buffer against signatures that are eventually thrown out during the verification process.

Along with securing enough signatures, supporters of the act must also contend with opposition from the It Goes Too Far Campaign, which is aiming to convince voters that the ballot proposal is too extreme. In an emailed statement, Campaign Manager Leisa Brug said that, despite the Arizona Supreme Court’s ruling, the 15-week gestational ban remains the law of the land, and the campaign is focused on ensuring that the effort to enshrine abortion protections doesn’t undermine that.

“Our campaign is committed to exposing the real impact of the vague language of this amendment,” she said, in an emailed statement. “Arizonans deserve to know.”

Democrats in Arizona and across the country are counting on the abortion issue to mobilize voters and deliver wins for party candidates. Abortion access has proven to be a highly motivating concern, even in red states like Kansas, where a record number of voters showed up to reject a legislatively referred ballot measure that would have given lawmakers the power to eliminate abortion protections, and in Virginia, where voters awarded Democrats a legislative majority to defend against the anti-abortion policies of the state’s Republican governor.

Vice President Kamala Harris placed the blame for the Arizona Supreme Court’s ruling squarely on former President Donald Trump, who is running to recapture the White House. The campaign to reelect President Joe Biden and Harris has sought to underscore Trump’s involvement in overturning Roe, and link his presidency to the proliferation of abortion bans across the country.

“Arizona just rolled back the clock to a time before women could vote – and, by his own admission, there’s one person responsible: Donald Trump,” Harris said in an emailed statement. “This even more extreme and dangerous ban criminalizes almost all abortion care in the state and puts women’s lives at risk. It provides no exceptions for rape, incest, or health. It’s a reality because of Donald Trump, who brags about being ‘proudly the person responsible’ for overturning Roe v. Wade, and made it possible for states to enforce cruel bans.”

Trump’s appointments to the U.S. Supreme Court bench secured a conservative majority that later struck down the constitutional right to abortion.

In a joint statement, Arizona Democratic Party Chairwoman Yolanda Bejarano and state Senator Eva Burch, who has recently become the face of abortion access in Arizona after sharing the difficulties she faced obtaining an abortion, denounced anti-abortion Republicans and vowed to back reproductive rights efforts in November.

“The decision to choose when and how to start a family belongs to each of us as individuals. Donald Trump and extremist Republicans at every level of government have been undermining these rights for years, and we have had enough,” the two said in an emailed statement. “Arizona Democrats are ready to do whatever it takes to protect the people of Arizona from these out-of-touch extremist policies, and take it to the ballot in November.”

The story is republished from the Arizona Mirror, a sister publication of the Kentucky Lantern and part of the nonprofit States Newsroom network.