Arizona Supreme Court Reinstates Civil War-Era Abortion Ban

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The 1864 law prohibits all abortions in the state except to save the motherโ€™s life.

A nearly two-year legal battle over abortion in Arizona ended on April 9 with the state Supreme Courtโ€™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 4โ€“2 ruling reverses a lower courtโ€™s opinion that a 15-week abortion limit passed in 2022 supersedes the older lawโ€™s abortion restrictions. The Arizona Court of Appeals had held that the two laws could be โ€œharmonized,โ€ allowing doctors to perform abortions up to 15 weeks, but also permitting the prosecution of non-physicians who perform abortions in the state.

โ€œWe 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 Womenโ€™s Health Organization,โ€ the Arizona Supreme Court wrote in its majority opinion.

โ€œAbsent 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 banโ€™s] operation,โ€ 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 Courtโ€™s June 2022 Dobbs decision overturning Roe v. Wade. Upon Roeโ€™s reversal, the stateโ€™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 stateโ€™s more recent abortion lawsโ€”including the 15-week limitโ€”suggested that the stateโ€™s lawmakers intended to allow greater access to abortion in the state than the Civil War-era law permits.

Byย Samantha Flom

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