Arizona’s Supreme Court hears case on state’s 1864 abortion ban

(NEW YORK) — The Arizona State Supreme Court began hearing oral arguments Tuesday over whether a centuries-old near-total abortion ban will be reinstated.

Currently, abortion is banned at 15 weeks or later in Arizona. Patients are required to make two appointments, the first for an in-person counseling session and the second at least 24 hours later for the abortion, according to the Guttmacher Institute, a research group that focuses on sexual and reproductive health.

When the U.S. Supreme Court overturned Roe v. Wade last summer, ending a federally protected right to have an abortion and giving states the right to make their own laws, Arizona providers weren’t sure which abortion law took precedent.

One option was the 15-week ban, which was signed into law by then Gov. Doug Ducey in 2022 and enforced after Roe fell. The other, from 1864, when Arizona was still a territory, would essentially ban abortion in the state.

Under the law, anyone who performs an abortion, or supplies medication to induce an abortion, faces between two and five years in prison. There are no exceptions for rape or incest, only if the mother’s life is in danger, according to the language of the bill.

The law was blocked in 1972 after Planned Parenthood Center of Tucson, the predecessor of Planned Parenthood Arizona, sued, arguing it was a violation of the state and U.S. Constitution.

When Roe v. Wade was passed in 1973, it overrode the 1864 law, but that near-total ban was never taken off the books.

In December 2022, the Arizona Court of Appeals “harmonized” the two laws, writing in an opinion that the 1864 law would only apply to non-physicians and that doctors could follow the newer law.

In August of this year, the State Supreme Court agreed to consider a petition regarding the ruling. The court will decide whether the older or newer law, or a combination of the two, will be enforced.

Attorneys representing the so-called “intervenors” — Yavapai County Attorney Dennis McGrane.and Dr. Eric Hazelrigg, medical director of a chain of anti-abortion clinics — argued the two bans work in tandem because the 1864 ban has an exception to save the mother’s life.

Planned Parenthood Arizona argued that the Civil War era law should not dictate the reproductive rights of Arizonans in the present day and to affirm the Court of Appeals’ decision to preserve abortion access.

“A near-total ban on abortion in our state would be catastrophic to the well-being of our communities and deeply out of touch with the will of the majority of Arizonans,” Dr. Jill Gibson, chief medical officer of Planned Parenthood Arizona, said in a statement on Tuesday. “Arizonans deserve the freedom to make their own decisions about their reproductive health”

“The Arizona Supreme Court has the opportunity to refuse this bleak future and reject this egregious threat to reproductive health care. Our community deserves better – we deserve a right to make our own decisions about our bodies and our health. And I will not stop fighting for my patients and our communities,” the statement continued.

At the same time, abortion advocates are trying to get a ballot measure approved for the 2024 election that would enshrine abortion right in Arizona’s constitution.