Abortion in Arizona set to be illegal in nearly all circumstances, state high court rules

The Arizona Supreme Court upheld on Tuesday a 160 year-old law which bans abortions, and punishes physicians who perform them. It said that the ban existed before Arizona was a state, and can continue to be enforced.

The court decided that the ban could not be enforced retroactively, and stayed the enforcement of the ruling for 14 days.

The shocking decision caused a political earthquake.

Angela Florez is the president and CEO at Planned Parenthood Arizona.

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A law from before statehood mandates two-five years of prison for anyone who aids an abortion. This is true unless the procedure is needed to save the mother’s life. In 2021, a law dating from the same period that required a woman to spend at least one year in jail for seeking an abortion has been repealed.

Reproductive rights activists say that if the ban is enforced, Arizona women could face serious health risks.

Some providers have said that they will continue to offer abortions until 15 weeks, at least temporarily — probably through May — due to a court ruling already in place. Abortion rights advocates also see the top Democrats in the state as a backup, since they have taken measures to prevent any enforcement of this ban.

Democratic Gov. Katie Hobbs issued a executive order in 2013 giving the entire power of enforcing abortion laws to state attorneys general, instead of county prosecutors. Kris Mayes has vowed to not prosecute abortion cases. She reaffirmed this position on Tuesday.

Mayes stated, “I will not prosecute any woman or doctor under this law while I am Attorney General.” “Not on my watch, nor will any other county attorney in our state.”

Mayes and Hobbs rely on a legal argument that has not been tested and could be challenged in court by one of the county attorneys.

Court says that abortions are illegal

Justices John R. Lopez IV (in the majority), Clint Bolick (in the minority), James P. Beene, and Kathryn H. King were in agreement. Lopez wrote the majority opinion while Vice Chief Judge Ann A. Scott Timmer wrote a dissent. Timmer was joined by Chief Justice Robert M. Brutinel. William G. Montgomery – the court’s seventh judge – recused himself.

Arizona’s Supreme Court justices have all been appointed by Republican Governors.

The ruling states that “Physicians should be aware that all abortions are illegal, except for those that are necessary to save the life of a woman… Additional criminal and regulatory sanctions could apply to abortions after 15 weeks of gestation.”

The majority held that the Arizona Legislature’s 2022 law, which prohibited abortions beyond 15 weeks of pregnancy, neither repealed the pre-statehood ban nor created a right to an abortion. The majority relied upon language in the law that was passed, which stated that it did not “repeal by implication or other means” the prestatehood ban.

The court found that “the legislature made their intent known” in part by “an unwavering intention since 1864 to prohibit elective abortions”. And it said the overturning Roe v. Wade left no constitutional rights to abortion.

The opinion states that “the legislature has demonstrated their consistent design to limit elective abortion to as much as permitted” before Roe was overturned.

“Life is a right of man, and today’s ruling allows the state respect that right and protect life fully again — as the Legislature intended,” stated Alliance Defending Freedom Senior Counsel Jake Warner, who argued before the court the case in favor the pre-statehood prohibition.

Timmer wrote in her dissent that the 2022 ban on most abortions after the 15-week mark was intended to create an exemption to the law before statehood and was not dependent on Roe v. Wade.

She said she wouldn’t “engage in the guesswork,” they did, and that it wasn’t “implausible” to conclude that the legislature “planted within the (bill), a bombshell reverting back to a nearly total ban on abortion.”

“The statute means exactly what it says. The state prosecutes physicians who perform abortions after a fetus has reached the age of fifteen weeks, unless there is a medical necessity for the procedure. The state won’t prosecute doctors who perform abortions before a fetus is fifteen weeks old. These abortions are legal. “There is no room for misunderstanding.”

The ruling may increase support for the ballot measure that is being prepared for this year, which would include abortion access in the Arizona Constitution. Advocates claim they have more than 500,000 signed petitions. This is well over the 383,923 required by a deadline in early July.

Chris Love, spokesperson for Arizona for Abortion Access, said, “We were expecting and hoping for worst, but we must keep moving forward.” “We can change the situation at the November ballot.”

The ruling of the state Supreme Court puts voters in a difficult position: either choose the new measure on reproductive rights or see abortion policy return to the 19th Century.

This black-and white choice as well as the anticipated increase in Democratic turnout due to the ballot measure could affect races for the state Legislature and other offices.

Hobbs, who said that the ruling had left Arizona with one of the “most extreme abortion bans” in the nation, called on the GOP-led Legislature Tuesday to repeal the 1864 prohibition immediately.

Hobbs, standing with over a dozen Democratic legislators, said: “The Republicans in the Legislature have repeatedly refused to act to defend our freedoms.” Hobbs pledged six-figure sums to defeat the Republican legislators who are on this year’s ballot.

When will the decision come into effect?

The ruling was a surprise to many abortion advocates, especially in a state that has had a lack of abortion access since the U.S. Supreme Court ruled against Roe v. Wade and abortion rights in 2022. Due to Arizona’s laws, clinics have provided abortions intermittently for some time, depending on the decisions of the courts.

Even after the top court’s ruling, there is still uncertainty as different groups have offered different timelines on when enforcement can begin.

Warner stated that he believes county attorneys can pursue cases after the 14-day stay of the court.

Planned Parenthood Arizona, the American Civil Liberties Union of Arizona and other groups said that the law could not be enforced until 45 days after it was ruled by the court.