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Arizona Reinstates 160-Year-Old Abortion Ban

Arizona’s highest court on Tuesday upheld an 1864 law that bans nearly all abortions, a decision that could have far-reaching consequences for women’s health care and election-year politics in a critical battleground state.

“Physicians are now on notice that all abortions, except those necessary to save a woman’s life, are illegal,” the court said in a 4-to-2 decision.

But the court, whose justices are all Republican appointees, also put its ruling on hold for the moment and sent the matter back to a lower court for additional arguments about the law’s constitutionality. Abortion providers said they expected to continue performing abortions through May as their lawyers and Democratic lawmakers searched for new legal arguments and additional tactics to delay the ruling.

The ruling immediately set off a political earthquake. Democrats condemned it as a “stain” on Arizona that would put women’s lives at risk. Several Republicans, sensing political peril, also criticized the ruling and called for the Republican-controlled Legislature to repeal it.

The decision from the Arizona Supreme Court concerned a law that was on the books long before Arizona achieved statehood. It outlaws abortion from the moment of conception, except when necessary to save the life of the mother, and it makes no exceptions for rape or incest. Doctors prosecuted under the law could face fines and prison terms of two to five years.

Planned Parenthood Arizona, the plaintiff, and other abortion-rights supporters argued that the 1864 ban, which had sat dormant for decades, had essentially been overtaken by years of subsequent Arizona laws regulating and limiting abortion — primarily, a 2022 law banning abortion after the 15th week of pregnancy.

But the territorial-era ban was never repealed. And the Arizona Supreme Court said Arizona’s Legislature had not created a right to abortion when it passed the 15-week ban. Because the federal right to abortion in Roe v. Wade had now been overturned, nothing in federal or state law prevented Arizona from enforcing the near-total ban, the court wrote.

“Because the federal constitutional right to abortion that overrode § 13-3603 no longer exists, the statute is now enforceable,” the court’s four-person majority wrote, using the statutory number of the 1864 ban.

Justice Bill Montgomery recused himself from the case after the publication of news reports that he had written a Facebook post saying that Planned Parenthood had participated in “the greatest generational genocide known to man.”

The court’s ruling was a stinging loss for abortion-rights supporters, who said it would put doctors in legal jeopardy, prompt clinics in Arizona to stop providing abortions and force women to travel to nearby states like California, New Mexico or Colorado to end their pregnancies.

At a news conference on Tuesday, Dr. Atsuko Koyama, an abortion provider in Phoenix, said she had recently provided abortions to one woman trying to flee an abusive partner and another whose pregnancy had endangered her health. She said that the court’s ruling would end that kind of care and that it “criminalizes me.”

President Biden called the ban “cruel,” and said that it was a result of “the extreme agenda of Republican elected officials who are committed to ripping away women’s freedom.”

“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.

Arizona’s attorney general, Kris Mayes, a Democrat, called the ruling “unconscionable and an affront to freedom.” She promised to mount a legal effort to fight off implementation of the law and said she would not prosecute doctors for providing abortions.

It is unclear whether other Arizona prosecutors will follow suit.

Gov. Katie Hobbs, a Democrat, issued an executive order putting authority to prosecute abortion-related cases under the attorney general. Ms. Mayes said on Tuesday that she would refuse to allow Arizona’s elected county attorneys to bring cases under the 1864 ban, potentially opening a new legal fight with Republican prosecutors and abortion opponents.

Jake Warner, a senior counsel for the Alliance Defending Freedom, a conservative Christian advocacy group that argued to reinstate the near-total ban, said at a news conference that he believed county prosecutors had the authority “to enforce the law as written, and so protect unborn life here in Arizona.”

At a news conference on Tuesday, Ms. Hobbs and other Democratic politicians decried the decision as “a stain on our state” that would energize abortion-rights supporters to vote in November’s elections.

Anti-abortion groups cheered the ruling.

“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,” Mr. Warner said. “We celebrate the Arizona Supreme Court’s decision that allows the state’s pro-life law to again protect the lives of countless, innocent, unborn children.”

Republicans control both chambers of the Legislature. The governor, Ms. Hobbs, is a first-term Democrat who campaigned on supporting abortion rights.

State Senator T.J. Shope, a Republican who represents a suburban and rural area south of Phoenix, said he would work to repeal the 1864 ban but leave in place a 15-week prohibition on abortions that was passed two years ago and signed into law by the previous governor, Doug Ducey, a Republican.

The stakes could also be significant for races up and down the ballot in Arizona this fall, after former President Donald J. Trump said this week that he thought abortion rights should be left up to the states to decide.

Political scientists in Arizona said the court’s abortion ruling was far out of step with public opinion. Only 7 percent of Arizona voters said they supported an outright abortion ban with no exceptions, according to a poll conducted last month by YouGov and Samara Klar, a political science professor at the University of Arizona.

Democrats, who seized on abortion to win campaigns for governor and attorney general in midterm elections two years ago, said it would galvanize their supporters, who were already pushing for a state constitutional right to abortion as a ballot initiative in November. In other states where abortion has been at risk of being curtailed, voters have turned out in force to protect it.

Representative Ruben Gallego, running unopposed in the Democratic primary for Senate, criticized the ruling and tied it to his opponent, Kari Lake, who called the near-total ban a “great law” when she was running for governor in 2022.

“Yet again, extremist politicians like Kari Lake are forcing themselves into doctors’ offices and ripping away the right for women to make their own health care decisions,” Mr. Gallego said, adding that he would do “whatever it takes to protect abortion rights at the federal level.”

Ms. Lake has been emblematic of a Republican shift on abortion. She came out against a federal ban last year while still backing the 15-week restriction that was in effect in Arizona, and she said on Tuesday that it was “abundantly clear that the pre-statehood law is out of step with Arizonans.” Ms. Lake called on the Legislature and Ms. Hobbs, her 2022 opponent in the governor’s race, to “come up with an immediate common sense solution.”

Representatives Juan Ciscomani and David Schweikert, two Republicans facing re-election challenges in closely divided districts, also criticized the ruling and urged state lawmakers to address it.

For nearly two years, supporters and opponents of abortion rights in Arizona have been fighting in court over whether the 1864 law could still be enforced, or whether it had been effectively overtaken and neutered by decades of other state laws that regulate and restrict abortion but stop short of banning it entirely.

The 1864 ban had sat mothballed for decades, one of several sweeping state abortion-ban laws that were moribund while Roe v. Wade was in effect but became the focus of intense political and legal action after Roe fell.

Abortions in Wisconsin were largely halted because of an 1849 ban, but resumed last September after a judge said the law did not make abortions illegal. In Michigan, Gov. Gretchen Whitmer, a Democrat, signed a repeal of a 1931 ban on abortion last spring after voters added abortion-rights protections to the state constitution.

Elizabeth Dias contributed reporting.


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