Arizona Supreme Court rules abortion ban from 1864 can be enforced

The Arizona Supreme Court ruled Tuesday that a 160-year-old abortion ban may be enforced, clearing the way for a near-total ban on abortions in the state.

The 1864 ban has exceptions to save the life of the mother but none in cases of rape or incest. 

"The abortion issue implicates morality and public policy concerns, and invariably inspires spirited debate and engenders passionate disagreements among citizens," the Arizona ruling states in the conclusion. 

The ban will supersede a 15-week abortion ban that was signed into law in 2022. That law included exceptions in cases of medical emergencies and has restrictions on medication abortion and requires an ultrasound before an abortion and parental consent for minors.

Arizona Attorney General Kris Mayes, a Democrat, issued a statement Tuesday calling the ruling "unconscionable and an affront to freedom" and said that "as long as I am Attorney General, no woman or doctor will be prosecuted under this draconian law in this state."

The law says that "a 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, shall be punished by imprisonment in the state prison for not less than two years nor more than five years."

It dates to before Arizona became a state. 

The decision has already garnered criticism from both Democrats and Republicans. 

"I signed the 15-week law as Governor because it is thoughtful conservative policy, and an approach to this very sensitive issue that Arizonans can actually agree on. The ruling today is not the outcome I would have preferred, and I call on our elected leaders to heed the will of the people and address this issue with a policy that is workable and reflective of our electorate," Doug Ducey, Arizona's former Republican governor,  posted on X.

Republican Senate candidate Kari Lake issued a statement opposing the ruling, and she called on Democratic Gov. Katie Hobbs and the state legislature "to come up with an immediate common sense solution that Arizonans can support." Lake's statement shows how fraught the issue has become for Republicans, since Lake had in the past referred to abortion as the "ultimate sin" and when Texas passed its restrictive abortion law, Lake posted on social media "well done Texas. Arizona is next." 

Her challenger, state Sen. Ruben Gallego, called the ruling "devastating for Arizona women and their families" and sought to tie the decision to Lake and Republicans. 

There are currently efforts underway to enshrine abortion rights into the Arizona state constitution. Arizona for Abortion Access announced last week that they had enough signatures to put their amendment on the ballot.

"And so you know, there are opportunities for voters to correct this and you've seen every state since Dobbs that when voters have an opportunity to weigh in they vote in favor of abortion," Jill Habig, President of Public Rights Project, which represented one of the parties in the case from Tuesday's ruling  told CBS News. "But in the meantime, you have tens of thousands of people who are pregnant or will become pregnant who will either need to drive or fly or get sick in order to receive care and their health will be very much at risk." 

The Arizona ruling comes on the heels of a decision from the Florida Supreme Court allowing a six-week abortion ban to go into effect and underscores the increased politicization of abortion rights since the Supreme Court overturned Roe versus Wade, effectively handing the issue back to the states.

President Biden's reelection campaign already denounced the decision, as his campaign has pushed to make abortion rights a central part of their administration and reelection bid.

In a reaction to the ruling, the Biden campaign posted on X that it was "made possible by Trump ending Roe v. Wade," a reference to former President Donald Trump placing three conservative justices on the Supreme Court during his presidency. 

In:
• Arizona
• Abortion

Shawna Mizelle

Shawna Mizelle is a 2024 campaign reporter for CBS News.

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