Arizona can enforce an 1864 law criminalizing nearly all abortions, court says

PHOENIX (AP) — Arizona will soon join 14 other states that have banned abortion at all stages of pregnancy after a state Supreme Court ruling Tuesday found that officials may enforce an 1864 law criminalizing all abortions except when a woman’s life is at stake.

The court said enforcement won’t begin for at least two weeks. However, it could be up to two months, based on an agreement reached in a related case in Arizona, according to state Attorney General Kris Mayes and Planned Parenthood, the plaintiffs in the current case.

The law provides no exceptions for rape or incest.

Under a near-total ban, the number of abortions in the state is expected to drop from about 1,100 monthly — as estimated by a survey for the Society of Family Planning — to almost zero. The forecast is based on what has happened in other states that ban abortion at all stages of pregnancy.

Arizona Sen. Eva Burch, who has had an abortion since announcing on the Senate floor last month that she was seeking one because her pregnancy wasn’t viable, criticized GOP lawmakers who back the ban.

“The fight for reproductive rights is not over in Arizona,” she said, referring to a statewide petition campaign to put the issue on the ballot this fall. “This moment must not slow us down.”

According to AP VoteCast, 6 out of 10 Arizona voters in the 2022 midterm elections said they would favor guaranteeing access to legal abortion nationwide.

Planned Parenthood officials vowed to continue providing abortions for the short time they are still legal and said they will reinforce networks that help women travel out of state to places like New Mexico and California to access abortion.

“Even with today’s ruling, Planned Parenthood Arizona will continue to provide abortion through 15 weeks for a very short period of time,” said Angela Florez, president of the organization’s Arizona chapter.

Arizona State University student Katarina White welcomed the ruling.

“I was overcome by joy and happy to know that all these babies that could potentially be aborted aren’t going to be aborted,” the Tempe resident said. “It just made me really proud to be an Arizonan.”

Brittany Crawford, a mother of three who owns a hair salon in Phoenix, said the high court’s ruling could have far-reaching consequences.

“You are going to have a lot of desperate girls doing whatever they can to get rid of their babies,” Crawford said. “Some could end up dead.”

She herself had an abortion at 18, right out of high school, and said she suffered extreme emotional trauma.

“I still think I should have the right to decide whether I do have a child, or whether I don’t have a child,” she said.

The Center for Arizona Policy, a longtime backer of anti-abortion proposals before the Legislature, said the state’s highest court reached the appropriate conclusion.

“Today’s outcome acknowledges the sanctity of all human life and spares women the physical and emotional harms of abortion,” the group said in a statement.

Nearly every state ban on abortions has been challenged with a lawsuit. Courts have blocked enforcing some restrictions, including prohibitions throughout pregnancy in Utah and Wyoming.

The Arizona ruling suggests doctors can be prosecuted for performing the procedure, and the 1864 law carries a sentence of two to five years in prison for doctors or anyone else who assists in an abortion.

“In light of this Opinion, physicians are now on notice that all abortions, except those necessary to save a woman’s life, are illegal,” the Arizona Supreme Court said in its decision, adding that additional criminal and regulatory sanctions may apply to abortions performed after 15 weeks.

Jill Gibson, chief medical officer at Planned Parenthood Arizona, said that means legal considerations are now likely to weigh heavily on any decision about abortion.

“It just creates this environment that makes it really impossible for a physician to understand her risk in taking care of her patients,” Gibson said. “Rather than, you know, making clinical decisions based on what my patients are telling me, I will be phoning my lawyers for guidance on what I can do.”

Planned Parenthood said it will continue to offer abortion services up to 15 weeks for at least two more months, in line with an agreement in the related case not to immediately enforce a near-total ban if upheld by the Arizona Supreme Court.

Since the U.S. Supreme Court overturned Roe v. Wade in 2022, most Republican-controlled states have started enforcing new bans or restrictions, and most Democratic-dominated ones have sought to protect abortion access.

Arizona Attorney General Mark Brnovich, a Republican, persuaded a state judge in Tucson to lift a restriction on enforcing the state’s 1864 law. Mayes, Brnovich’s Democratic successor, had urged the state’s high court to hold the line against it.

“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,” Mayes said Tuesday.

Former Arizona Gov. Doug Ducey, a Republican who signed the state’s current law restricting abortion after 15 weeks, posted on the social platform X saying that the state Supreme Court’s ruling was not the outcome he would have wanted.

“I signed the 15-week law as governor because it is thoughtful policy, and an approach to this very sensitive issue that Arizonans can actually agree on,” he said.

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This story corrects the day of the week that the Arizona Supreme Court issued its decision. It was Tuesday, not Thursday. ___

Associated Press writers Morgan Lee in Santa Fe, New Mexico; Jonathan J. Cooper in Phoenix; Laura Ungar in Louisville, Kentucky; and Geoff Mulvihill in Chicago contributed to this report.