Arizona supreme court upholds 1864 law banning almost all abortions

The Arizona supreme court ruled Tuesday to let a law banning almost all abortions in the state go into effect, a decision that could curtail abortion access in the US south-west and could make Arizona one of the biggest battlefields in the 2024 electoral fight over abortion rights.

The justices said Arizona could enforce a 1864 near-total abortion ban, first passed before Arizona became a state, that went unenforced for decades after the US supreme court legalized abortion nationwide in the 1973 decision Roe v Wade. However, the justices also ruled to hold off on requiring the state to enforce the ban for 14 days, in order to allow advocates to ask a lower court to pause it again.

The ban can only be enforced “prospectively”, according to the 4-2 ruling. Minutes after the ruling Kris Mayes, Arizona’s Democratic attorney general, vowed not to prosecute any doctors or women under the 1864 ban.

“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,” Mayes said in a statement.

Voters may be able to weigh in on the issue in November: abortion rights supporters in Arizona have spent months gathering signatures for a ballot measure to enshrine abortion rights into the state constitution, and the Tuesday decision raises the stakes for their efforts significantly. If it succeeds, the ballot measure would declare that people in Arizona have a “fundamental right to abortion” and that the state will not try to curb that right before a pregnancy reaches fetal viability, which is generally pegged to about 24 weeks of pregnancy.

Although ballot measures need to amass 383,923 signatures by July to get on the ballot, the organizers behind the Arizona measure announced last week that they have gathered more than 500,000 signatures. They said that they planned to continue gathering signatures.

Arizona is one of roughly a dozen states where voters may get a chance to vote directly on abortion rights come November. However, as a key battleground state in the presidential election, the stakes in Arizona are particularly high, since Democrats hope that outrage over Roe’s overturning will also propel their candidates –including Joe Biden – to victory.

The Tuesday decision is likely to galvanize voters. Several states have held abortion-related ballot measures since Roe fell, and in every state – including Republican strongholds like Kansas and Kentucky – abortion rights supporters have triumphed.

Until the 1864 ban is enforced, abortion is accessible in Arizona up until 15 weeks of pregnancy. Under the 1864 ban, it is illegal to help “procure the miscarriage” of a pregnant woman. The law only permits abortions to save a woman’s life and does not have exceptions for rape or incest.

The impact of the ruling will reverberate beyond Arizona’s borders. One Arizona abortion provider told the Guardian that many of their patients come from the neighboring state of Texas, which has banned almost all abortions since even before Roe fell. Because Texas is home to one in 10 women of reproductive age in the US, Arizona has been a critical release valve for Texans fleeing the state’s abortion bans.

Democrat Ruben Gallego, who is running against Republican and stalwart Donald Trump supporter Kari Lake to represent Arizona in the US Senate, slammed the law in a statement.

“Our fight against extremist bans like the one enacted today has never been more important – which is why I’m committed to doing whatever it takes to protect abortion rights at the federal level,” Gallego said.