Arizona's supreme court revives 1864 abortion ban. What to know about the ruling
Abortions are illegal in nearly all circumstances under a pre-statehood law that the Arizona Supreme Court upheld on Tuesday.
The abortion ban was put in place under Arizona law in 1864. However, the state Court of Appeals issued an injunction against the 160-year-old ban when the U.S. Supreme Court issued its historic Roe v. Wade decision in 1973.
Attorney General Kris Mayes answers questions during a news conference on the Arizona Supreme Court abortion law ruling at the Arizona State Capitol in Phoenix on April 9, 2024.
When the Dobbs v. Jackson Women’s Health Organization ruling came in June 2022 and removed the Roe protections, conservative activists in Arizona petitioned the courts to remove the injunction against the ban.
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Here’s what we know about the latest abortion ruling in Arizona.
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When is abortion legal under law?
The pre-statehood law indicates abortions are allowed when necessary to save the life of the mother.
When would an abortion be necessary to save the life of a mother?
The pre-statehood ban doesn’t include exact criteria to help providers determine when an abortion is legally allowable, said Jennifer Piatt, co-director of the Center for Public Health Law and Policy at Arizona State University’s Sandra Day O’Connor College of Law.
That raises legal questions and could make it difficult for doctors to parse out when a medical emergency is so severe that they can perform an abortion without fearing retribution.
“There’s no specific definition. The 15-week ban had very specific definitions of what constituted emergency circumstances,” she said. “Working that out and figuring out the contours and limitations of that is also going to be this brand new, big legal question for folks to have to tangle with.”
Arizona Supreme Court: Abortion set to be illegal in nearly all circumstances
What about medication abortion?
The law bans all abortions except when necessary to save the mother’s life. The ban includes medication abortions, which are a two-drug combination recommended for use up to 10 weeks of pregnancy. Medication abortions are also often known as abortion pills.
Arizona has a law that says a “manufacturer, supplier or physician or any other person is prohibited from providing an abortion-inducing drug via courier, delivery or mail service,” though the law doesn’t say anything about whether it’s legal for a person to receive the drugs in the mail.
As a result, some Arizonans could end up turning to obtaining abortion pills from suppliers outside of the state or the country.
Plan C, a U.S.-based information campaign about medication abortions, says that while abortion pills are prescription medications in the U.S., it is possible to get them from some places without a prescription. Plan C is referring patients to a free, confidential Repro Legal Helpline at 844-868-2812.
When does the 1864 abortion law go into effect in Arizona?
The territorial ban could take effect as soon as roughly 60 days from now to much farther down the road, depending on how the parties to the lawsuit respond to the Arizona Supreme Court’s decision, according to Jared Keenan, legal director of the ACLU of Arizona, which was not a party in the case that led to today’s decision.
The Supreme Court stayed enforcement of the territorial ban for 14 calendar days from Tuesday. Plus, the parties in a separate lawsuit previously agreed with former Arizona Attorney General Mark Brnovich that should the territorial ban go into effect, the state cannot enforce it for an additional 45 days, Keenan said.
So, under that reasoning, the earliest possible enforcement date is roughly 60 days away.
But if the parties raise additional challenges to the territorial ban at the trial court level in the next two weeks, they also can ask the trial court to stay the Supreme Court’s opinion, Keenan said.
Keenan said a potential stay by the trial court could remain in place until the case is resolved. That could be months in the future — potentially after the November election when a measure protecting abortion access may be on the ballot.
If passed, that constitutional amendment would go into effect in early December, after the general election votes are canvassed.
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What are the punishments for abortions?
The pre-statehood law mandates two to five years in prison for anyone aiding an abortion, except if the procedure is necessary to save the life of the mother.
Could a woman be prosecuted for seeking an abortion?
The text of the pre-statehood law notes that it could apply to any person who “provides, supplies or administers to a pregnant woman, or procures such woman to take any medicine, drugs or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless it is necessary to save her life.”
Jennifer Piatt of the Sandra Day O’Connor College of Law said that leaves open the possibility that a woman could be prosecuted under the pre-statehood law for seeking out an abortion. She said the issue is “subject to ongoing litigation.”
“We didn’t have this law in place, so there wasn’t any reason to sort of tear out those nitty gritty pieces of it. Now that it’s in place, there’s going to be that legal argument available. The language is broad enough, I think, in the statue, that it’s possible.”
She noted a law from the same era requiring at least a year in prison for a woman seeking an abortion was repealed in 2021. That could create legal arguments around legislative intent that would indicate the pre-statehood law upheld on Tuesday doesn’t apply to anyone who receives an abortion.
“We just don’t know,” she said. “So I think it’s possible that could be litigated.”
How will the Arizona abortion ban be enforced?
Enforcement of the law is stayed for 14 days under the state Supreme Court’s ruling. Beyond that, it’s unclear just how, or if, the law will be enforced.
Democratic Gov. Katie Hobbs issued an executive order last year giving all power to enforce abortion laws to the state attorney general.
The current attorney general, Democrat Kris Mayes, has vowed not to enforce any abortion bans. But her decision and Hobbs’ order could be challenged by one of the state’s county attorneys.
What does ‘prospectively enforced’ mean?
The Arizona Supreme Court ruling indicated the pre-statehood ban can only be “prospectively enforced.”
Because the law is “prospectively enforced,” Jennifer Piatt of the Sandra Day O’Connor College of Law said attorneys wouldn’t be able to prosecute any previous abortions or abortions that could occur in the time before this ruling would take effect.
How could an abortion ban affect maternal mortality in Arizona?
Abortion bans have a negative effect on maternal mortality, studies and health experts say.
“Pregnant people in states where abortion is already banned are nearly three times as likely to die in pregnancy, childbirth or soon after delivery,” said Dr. Jill Gibson, chief medical officer for Planned Parenthood Arizona.
“Arizona’s maternal mortality rate has tragically quadrupled over the last 20 years. And today, the Arizona Supreme Court has made a decision that we know from data, will directly cause the maternal mortality rate in Arizona to become even more unacceptable and tragic.”
An abortion ban could also reduce the number of medical students and recent graduates who will want to do their obstetrics/gynecology training in the state, health policy expert Swapna Reddy said. And based on what has happened in other states with abortion bans, there could be a chilling effect on finding providers, including pharmacists, nurses, and support staff in the field of reproductive health care in general.
“That’s a problem for our larger society and it disproportionately affects folks in rural areas and it disproportionately affects areas that already have maternal care shortages,” said Reddy, who is a clinical associate professor at Arizona State University’s College of Health Solutions, though she said her opinions are personal and do not represent ASU.
“In the United States, we have the worst maternal mortality stats of any developed nation, and Arizona already has maternal mortality issues, so it’s something I think we really need to be conscious of.”
Where is abortion legal in the United States?
Abortion is banned in the following states, according to CNN’s abortion law tracker:
- Alabama
- Arkansas
- Idaho
- Indiana
- Kentucky
- Lousiana
- Mississippi
- Missouri
- North Dakota
- Oklahoma
- South Dakota
- Tennesee
- Texas
- West Virginia
These states have bans in place making abortions illegal depending on how far along the pregnancy is:
- Florida
- Georgia
- Nebraska
- North Carolina
- South Carolina
- Utah
This article originally appeared on Arizona Republic: Arizona’s supreme court revives 1864 abortion ban. What to know about the ruling