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 list 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 — 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That Civil War-era law — enacted a half-century before Arizona even gained statehood — was never repealed, and an appellate court ruled last year that it could remain on the books as long as it was “harmonized” with a 2022 law, leading to substantial confusion in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.
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in the state — effectively undoes a lower court’s ruling that stated that a more recent 15-week ban from March 2022 superseded the 1864 law.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 hold its decision for 14 days, writing that it would send the case back to a lower court so that it could consider “additional constitutional challenges” that have yet to be resolved.
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”. He 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.”
