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ARIZONA—The Arizona Supreme Court ruled Tuesday, April 9, in a 4-2 vote, that a state law written in 1862, nearly completely prohibiting abortion statewide, is still enforceable.

The 162-year-old state law makes abortion a felony, punishable from anywhere between two to five years in prison, for anyone who performs one, or helps a woman obtain one. The law criminalizes abortion from the time of conception and includes certain exceptions when the procedure would save a woman’s life.

“The AZ Supreme Court just upheld an extreme abortion ban that dates back to the Civil War & before women had the right to vote. This will have devastating consequences for women in Arizona—and it’s a direct result of Trump & the GOP overturning Roe and the freedom to choose,” wrote Senator Patty Murray on X Tuesday.

The AZ Supreme Court just upheld an extreme abortion ban that dates back to the Civil War & before women had the right to vote. This will have devastating consequences for women in Arizona—and it's a direct result of Trump & the GOP overturning Roe and the freedom to choose.

— Senator Patty Murray (@PattyMurray) April 9, 2024

The abortion law was written in a tumultuous time in our nation’s history, three years before the Civil War ended, an entire 50-years before Arizona even became an American state, and nearly 60 years before women were even legally allowed to vote. The law, which was codified in 1901 and 1903, respectively, was never appealed and, as a result, an appellate court found last year that the law could still be effective so long as it works in conjunction with a lesser Arizona court’s ruling back in 2022 – which allowed for abortions up to 15-weeks of pregnancy.

Now, at an impasse, the Arizona Supreme Court has decided to put its decision on hold for 14-days while a lesser court considers “additional constitutional challenges” that haven’t been cleared up.

Washington State Governor Jay Inslee, in response to the Arizona court abortion ruling wrote, “no one can stay on the sidelines in this fight to preserve choice.”

Republican efforts to ban abortion have literally taken us back to the 19th Century. It’s a stark reminder no one can stay on the sidelines in this fight to preserve choice. https://t.co/4uq20XgYLL

— Governor Jay Inslee (@GovInslee) April 9, 2024

Arizona Attorney General Kris Mayes issued a statement following the court’s decision publicly refusing to enforce what she called a “draconian law” writing:

The decision made by the Arizona Supreme Court today is unconscionable and an affront to freedom. Make no mistake, by effectively striking down a law passed this century and replacing it with one from 160 years ago, the Court has risked the health and lives of Arizonians. The Arizona Court of Appeals decision, which the Supreme Court has struck down today, was well reasoned and aligned with how courts harmonize difference legislation…As long as I am Attorney General, no woman, or doctor will be prosecuted under this draconian law in this state.”

Arizonans will soon live under a more extreme abortion ban that fails to protect women when their health is at risk or in cases of rape or incest.

It was first enacted in 1864.

And it’s back because of Republican elected officials committed to ripping away women’s freedom. https://t.co/iK5rRbGzWG

— President Biden (@POTUS) April 9, 2024

President Joe Biden also took to social media to criticize the ruling, blaming Republican lawmakers for its resurfacing.

“Arizonans will soon live under a more extreme abortion ban that fails to protect women when their health is at risk or in cases of rape or incest,” Biden posted to his official X page. “It was first enacted in 1864. And it’s back because of Republican elected officials committed to ripping away women’s freedom.”

Vice President Kamala Harris announced her plans to visit Arizona on Friday, following its decision, to “continue her leadership in the fight for reproductive freedom.”

The Arizona Supreme Court ruling allows an 1864 abortion ban to go into effect. There are no exceptions for rape and incest, and it threatens doctors and nurses with prison time.

It does not have to be this way. Congress must restore the protections of Roe. pic.twitter.com/JGdA7RNI2W

— Vice President Kamala Harris (@VP) April 9, 2024

On the other end of the aisle, House Speaker Kevin McCarthy praised the decision stating the “GOP did exactly what we had said we would do,” to “stop the Biden administration from using taxpayer money to do their own wokeism.”

The court concluded Tuesday that the 2022 issued ban “does not create a right to, or otherwise provide independent statutory authority for, an abortion that repeals or restricts” the 160-year-old law “but rather is predicated entirely on the existence of a federal constitutional right to an abortion since disclaimed” by the 2022 Dobbs decision that overturned Roe v. Wade, NBC News reported Tuesday.

Back in June 2022, the United States Supreme Court overturned the 50-year-old landmark Roe v. Wade decision, 6-3, that established a right of personal privacy protected by the Due Process Clause which include the right of a woman to determine whether or not to bear a child. Access to an abortion would now become a state issue, with some states implementing “trigger laws.”

Roe v. Wade was a landmark decision in the Supreme Court when the court ruled that the Constitution of the United States protects a pregnant woman’s liberty to choose to have an abortion without excessive government restriction, striking down many state and federal laws, in 1973.

The decision involved the case of Norma McCorvey, better known by her pseudonym “Jane Roe” who in 1969 became pregnant with her third child. McCorvey wanted an abortion but lived in Texas where abortion was illegal. Her attorneys Sarah Weddington and Linda Coffee filed a lawsuit on her behalf in U.S. federal court against her local district attorney Henry Wade, alleging that Texas abortion laws were unconstitutional.

A three-judge panel of the U.S. District Court for the Northern District of Texas heard the case and ruled in McCorvey’s favor and Texas appealed to the U.S. Supreme Court.

In January 1973, the Supreme Court issued a 7-2 decision ruling in McCorvey’s favor ruling that the Due Process Clause on the Fourteenth Amendment to the United States Constitution provides a “right to privacy” that protects a pregnant woman’s right to choose to have an abortion.

Roe v. Wade’s legal rulings were modified by the Supreme Court decision of Casey v. Planned Parenthood in 1992, holding that a woman’s right to choose an abortion is protected by the constitution but abandoning Roe’s trimester restrictions before fetus viability.

The Arizona Supreme Court’s decision is wrong & another extreme attack on reproductive freedom.⁰⁰Congress must pass the Women’s Health Protection Act to ensure safe & legal abortion nationwide. https://t.co/vZJSmKcNXm

— Rep. Rick Larsen (@RepRickLarsen) April 9, 2024

“The Arizona Supreme Court’s decision is wrong & another extreme attack on reproductive freedom,” Rep. Rick Larsen took to X (formerly Twitter) to say. “Congress must pass the Women’s Health Protection Act to ensure safe & legal abortion nationwide.”

Abortion, Washington state and Initiative 120

On November 5, 1991, Washington voters approved initiative 120 (50.4% to 49.96%) declaring that a woman has a right to choose physician performed abortion prior to fetal viability (24 to 25 weeks into pregnancy).

The initiative made it Washington State public policy that:

• Every individual has the fundamental right to choose or refuse birth control;
• Every woman has the fundamental right to choose or refuse to have an abortion, except as specifically limited by this act;
• Except as specifically permitted by this act, the state shall not deny or interfere with a woman’s fundamental right to choose or refuse to have an abortion; and
• The state shall not discriminate against the exercise of these rights in the regulation or provision of benefits, facilities, services, or information.

Author: Kienan Briscoe