Arizona's top court revives 19th century abortion ban

Arizona's top court revived a law dating to 1864 on Tuesday that bans abortion in virtually all instances, another setback for reproductive rights in a state where the procedure already was barred starting at 15 weeks of pregnancy.

The Arizona Supreme Court ruled 4-2 in favor of an anti-abortion obstetrician and a county prosecutor who took up defense of the law after the state's Democratic attorney general declined to do so.

Justice John Lopez, who like all of the court's members was appointed by a Republican governor, wrote that to date, 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 lifted the stay on enforcement of the 19th century law but will only allow it to be enforced prospectively. It stayed enforcement 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.

While Mayes said she would not enforce the law, local prosecutors could. One, Republican Yavapai County Attorney Dennis McGrane had intervened in the litigation to defend the statute in order to enforce it.

The ruling marked the latest legal setback for 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.

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

Democratic President Joe Biden in a statement called the Arizona ruling the "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.

VOTERS MAY DECIDE

Fourteen other states have banned nearly all abortions since the U.S. Supreme Court's 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 swing voters in the November election.

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 put on the November ballot a 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.

At issue in the Arizona Supreme Court case was an 1864 law that banned abortions except to save the woman's life, and imposed a penalty of up to five years in prison for anyone who performs an abortion.

Planned Parenthood, which provides abortions and other healthcare services, sued the state in 1971 to challenge the 1864 law. A judge ruled in Planned Parenthood's favor and issued an order blocking the law following the US Supreme Court's landmark Roe v. Wade ruling.

In March 2022, the governor at the time, Republican Doug Ducey, signed the new law that banned abortion after 15 weeks. Like the 1864 statute, it carries a penalty of up to five years in prison for anyone who performs or helps a woman obtain an abortion.

In July 2022, then-Republican Attorney General Mark Brnovich filed a motion in the Planned Parenthood case to challenge the judicial order that blocked the 1864 law and let prosecutors enforce the ban. A court granted that request in September 2022.

After Planned Parenthood appealed, a state appellate court in December 2022 once again blocked the 1864 ban from being enforced against doctors, though it allowed enforcement against non-physicians who perform abortions. The state's newly elected Democratic governor, Katie Hobbs, and attorney general Mayes, declined to appeal further.

That led obstetrician Eric Hazelrigg and McGrane to intervene in the case to defend the 1864 law before the state's Supreme Court. Hazelrigg runs a network of crisis pregnancy centers - facilities where pregnant women are counseled against having abortions.

They are represented by Alliance Defending Freedom, a conservative legal group behind other challenges to abortion rights including an effort to restrict access to the abortion pill.

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

"And in my view, the majority mistakenly returns us to the territorial-era abortion statute last operative in 1973," she said. "I would leave it to the people and the legislature to determine Arizona’s course in the wake of Roe’s demise."