Arizona’s top court revives 1864 law which bans nearly all abortions

The top court in the US state of Arizona, on Tuesday (Apr 9) ruled that the state can enforce its long-dormant 19th-century law that criminalises nearly all abortions. The ruling marks yet another setback for reproductive rights in the state where abortion was already banned starting at 15 weeks of pregnancy.

The 1864 law provides no exceptions for rape or incest and bans abortion in virtually all instances, except when a mother’s life is at stake. The Arizona Supreme Court ruled in favour of the law by a 4-2 majority. 

The decision came after reviewing a 2022 decision by the state Court of Appeals which said doctors couldn’t be charged for performing the procedure in the first 15 weeks of pregnancy. 

The ruling was also in favour of an anti-abortion obstetrician Eric Hazelrigg and Republican Yavapai County Attorney Dennis McGrane who took up the defence of the law after Arizona’s attorney general had declined to do so.

Notably, the fight to enforce the 19th-century law has been going on for years, but it was blocked after the US Supreme Court issued the 1973 landmark Roe v Wade ruling which guaranteed a constitutional right to an abortion.

However, in June 2022, the SCOTUS overturned the ruling which has led many Republican states to enforce new bans or restrictions on abortion. 

Weeks after Roe v Wade was overturned, then-Republican Attorney General Mark Brnovich filed a motion to challenge the Planned Parenthood case which had sued the state in 1971 and won. 

It is also worth noting that the law that the state’s top court has revived was enacted in 1864 before Arizona even became a US state. 

The state would now not only be allowed to ban nearly all abortions but also impose a penalty of up to five years in prison on anyone who performs or helps a woman to get the medical procedure, in line with 19th-century law. 

Notably, 14 out of the 50 US states are currently enforcing bans on abortion at all stages of pregnancy with some exceptions. 

Arizona Attorney General Kris Mayes, a Democrat, called the ruling “unconscionable and an affront to freedom,” and said that she would not prosecute any doctor or woman under the “draconian law,” while in her position. 

“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 added. 

However, pro-choice activists are not going down without a fight. Last week, abortion rights advocates said that they had gathered enough signatures that would allow voters in November to vote on a measure which would enshrine a right to an abortion until fetal viability, in the state’s constitution. 

(With inputs from agencies)