Arizona's top court revives 19th century abortion ban

[April 10, 2024]  By Brendan Pierson and Nate Raymond

(Reuters) - Arizona's top court on Tuesday revived a ban on nearly all abortions under a law from 1864, a half century before statehood and women's suffrage, further restricting reproductive rights in a state where terminating a pregnancy was already barred at 15 weeks of gestation.

The Arizona Supreme Court ruled 4-2 in favor of an anti-abortion obstetrician and a county prosecutor who pressed to implement the Civil War-era statute after the Democratic attorney general of the key presidential battleground state declined to do so.

States were given the go-ahead to adopt such bans after the conservative-majority U.S. Supreme Court in June 2022 overturned its landmark 1973 ruling in Roe v. Wade that had made access to abortion a constitutional right nationwide.

Arizona Justice John Lopez, who like all of the state Supreme Court's members was appointed by a Republican governor, wrote that the state's legislature "has never affirmatively created a right to, or independently authorized, elective abortion."

"We defer, as we are constitutionally obligated to do, to the legislature's judgment, which is accountable to, and thus reflects, the mutable will of our citizens," Lopez wrote.

The state high court ruled the 19th century law could be enforced prospectively. But it stayed implementation of its decision for 14 days to allow the parties to raise any remaining issues at the trial-court level.

Arizona Attorney General Kris Mayes, a Democrat, in a statement called the ruling "unconscionable and an affront to freedom," and stressed that she would not prosecute any doctor or woman under the "draconian law."

"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," she said.

Planned Parenthood Arizona, which offers abortions at its clinics in the state, said it would continue to provide those services "for a short period of time" under a 2022 state court order barring immediate enforcement of the 1864 law.

That injunction, according to the organization, remains in effect until 45 days after the state Supreme Court formally issues its ruling, which typically takes a number of weeks.

While Mayes said she would not enforce the law, local prosecutors could. One, Republican Yavapai County Attorney Dennis McGrane, intervened in the litigation to argue in favor of the 1864 statute. He was joined by obstetrician Eric Hazelrigg, who runs a network of pregnancy centers that counsel against abortion.

Tuesday's decision marked the latest legal setback for U.S. abortion rights, following a ruling last week by the Florida Supreme Court that cleared the way for a Republican-backed law banning abortion after six weeks of pregnancy to take effect.

President Joe Biden, a Democrat whose re-election bid is widely seen as gaining from a backlash to new abortion restrictions since Roe was overturned, called the Arizona ruling the "result of the extreme agenda of Republican elected officials who are committed to ripping away women’s freedom."

Protesters take part in a small rally led by Women's March Tucson after Arizona's Supreme Court revived a law dating to 1864 that bans abortion in virtually all instances, in Tucson, Arizona, U.S. April 9, 2024. REUTERS/Rebecca Noble

"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," he said in a statement.

California Governor Gavin Newsom, a Democrat, said on the social media platform X that his neighboring state "remains ready to help Arizonans access reproductive health care."

VOTERS MAY DECIDE

Fourteen other states have banned nearly all abortions since the U.S. Supreme Court's 2022 ruling. Republican presidential candidate Donald Trump on Monday said access to abortion should be determined by the states, and stopped short of proposing a national ban that could imperil his chances with voters in swing states like Arizona in the November election.

Asked if Trump's campaign had any response to Tuesday's ruling, a spokesperson, Karoline Leavitt, said in a statement the former president "could not have been more clear. These are decisions for people of each state to make."

In Arizona, the issue could ultimately be decided by the voters, after a group of abortion rights advocates last week said it gathered enough signatures to create a November ballot measure that would enshrine in the state's constitution a right to an abortion until fetal viability.

Abortion rights measures have prevailed everywhere they have been on the ballot since the Supreme Court's decision.

Planned Parenthood sued the state in 1971 to challenge the 1864 law, which banned abortions except to save a woman's life and imposed up to five years in prison on anyone performing an abortion.

A judge ruled in Planned Parenthood's favor and issued an order blocking the law following the U.S. Supreme Court's landmark Roe v. Wade ruling.

In September 2022, after Roe was overturned, a court granted a request filed by the then-Republican attorney general to allow prosecutors to enforce the 1864 ban, but a state appellate court once again blocked it.

Vice Chief Justice Ann Timmer, in an opinion joined by Chief Justice Robert Brutinel, dissented from Tuesday's ruling, saying if the legislature had intended for the near-total abortion ban to take effect, it could have done so during its 2023 session.

"I would leave it to the people and the legislature to determine Arizona’s course in the wake of Roe’s demise," she wrote.

(Reporting by Brendan Pierson in New York, additional reporting by Joseph Ax in New York, Editing by Will Dunham, Alexia Garamfalvi, Bill Berkrot and Cynthia Osterman)

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