The 1864 law prohibits all abortions in the state except to save the mother’s life.
A nearly two-year legal battle over abortion in Arizona ended on April 9 with the state Supreme Court’s ruling that a pre-statehood ban on most abortions is legally enforceable in the state.
The 1864 law bans all abortions in Arizona, save those performed to save the life of the mother.
The 4–2 ruling reverses a lower court’s opinion that a 15-week abortion limit passed in 2022 supersedes the older law’s abortion restrictions. The Arizona Court of Appeals had held that the two laws could be “harmonized,” allowing doctors to perform abortions up to 15 weeks, but also permitting the prosecution of non-physicians who perform abortions in the state.
“We conclude that [the 2022 law] does not create a right to, or otherwise provide independent statutory authority for, an abortion that repeals or restricts [the 1864 ban], but rather is predicated entirely on the existence of a federal constitutional right to an abortion since disclaimed by Dobbs v. Jackson Women’s Health Organization,” the Arizona Supreme Court wrote in its majority opinion.
“Absent the federal constitutional abortion right, and because [the 2022 law] does not independently authorize abortion, there is no provision in federal or state law prohibiting [the 1864 ban’s] operation,” the court added, holding that the ban is now enforceable.
The law is slated to take effect on April 23.
Arizona was one of several states thrown into turmoil by the U.S. Supreme Court’s June 2022 Dobbs decision overturning Roe v. Wade. Upon Roe’s reversal, the state’s then-Attorney General Mark Brnovich, a Republican, said the 1864 law should be enforced.
At the time, the law was permanently blocked due to a 1973 injunction that was granted in the wake of Roe. Mr. Brnovich filed a motion to lift the injunction, but attorneys representing Planned Parenthood of Arizona argued that the state’s more recent abortion laws—including the 15-week limit—suggested that the state’s lawmakers intended to allow greater access to abortion in the state than the Civil War-era law permits.
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