Arizona Supreme Court upholds Civil War-era near-total abortion ban

A near-total abortion ban, part of a 158-year-old law, is enforceable in Arizona, the state’s Supreme Court ruled on Tuesday. 

In a 4-2 bombshell decision, the state’s supreme court upheld a Civil-War era law that criminalises abortions, and those who help a woman obtain one, only with exceptions to save a woman’s life. The law makes it a felony punishable by two to five years in prison.

The state’s supreme court had been mulling over whether to resurrect the law, which was enacted 50 years before Arizona gained statehood, or follow a 2022 law that bans abortions only after 15 weeks unless medically necessary to save a woman’s life.

The ban will go into effect in 14 days – until then Planned Parenthood Arizona said they will continue providing abortions through 15 weeks.

Anti-abortion advocates argued that language in the two laws conflicted and the state should follow the 1864 law.

It was a highly anticipated opinion in the swing state as abortion shapes up to be a crucial issue for voters in November. Both Democrats and Republicans have capitalised on the issue of abortion to advocate for their party’s candidates.

President Joe Biden has stood up for abortion rights, blaming Republicans – including former president Donald Trump – for eliminating federal protections.

Meanwhile, Mr Trump has walked the line on abortion. Just this week he took credit for overturning Roe v Wade but refused to back a national ban, claiming the issue should be left to the states.

Arizona voters could be voting on an amendment in November that would enshrine the right to abortion up to 24 weeks.

A protestor holds a sign reading ‘My Body My Choice’ at a Women’s March rally outside the State Capitol on October 8, 2022 in Phoenix, Arizona. (Getty Images)

Abortion access in the Grand Canyon state became, and remained, uncertain for medical providers and those seeking abortion since the US Supreme Court overturned Roe v Wade in 2021.

Months before the decision, the Republican-majority state legislature passed the 15-week ban in anticipation of the Supreme Court’s decision rather than amend the 1864 law which was overridden when Roe was enacted in 1973.

But when Roe was overturned, it was the 1864 law that went into effect. Planned Parenthood Arizona challenged the decision and the state appellate court upheld the 15-week ban, leading to debate over which law should take precedence.

The state supreme court heard oral arguments in December. Abortion rights organisations warned that a ruling in favour of the Civil War-era law would severely threaten access to reproductive health care, asking the court to uphold the ruling which allows abortions up to 15 weeks.

But anti-abortion groups urged the Arizona Supreme Court to restore the 158-year-old law.

In their decision, justices said that “the legislature perhaps got more than it expected when Dobbs overruled Roe” and suggested that most legislators would have included a trigger clause if they knew the 1864 law would go into effect.

“But the legislature did not state that intent in any statute or session law, and we should not speculate about what it would have done,” the majority wrote.

The Arizona justices said the case, Planned Parenthood v Mayes could return to the lower courts for further litigation.

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