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Arizona Supreme Court allows near-total abortion ban from 1864 to take effect

Abortions will soon be outlawed in Arizona except in cases where a pregnant person’s life is at risk.

The state Supreme Court has ruled Arizona should follow a restrictive abortion law dating back to the 1860s.

Since December 2022, Arizona doctors have been allowed to provide abortions up to 15 weeks into a pregnancy, based on a lower court’s interpretation of state laws. But the state Supreme Court now says Arizona should follow a law — adopted by the state’s First Territorial Legislature in 1864 — banning abortions in almost all cases. It makes no exceptions for rape or incest and makes performing an abortion punishable by two to five years in prison.

Arizona Attorney General Kris Mayes issued a statement shortly after the ruling, calling it "unconscionable."

"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 Arizonans. The Arizona Court of Appeals decision, which the Supreme Court has struck down today, was well reasoned and aligned with how courts harmonize different legislation," she said.

“Life is a human right, and today’s decision allows the state to respect that right and fully protect life again — just as the Legislature intended,” said Jake Warner, the Alliance Defending Freedom senior counsel who argued before the court. “Life begins at conception. At just six weeks, unborn babies’ hearts begin to beat. At eight weeks, they have fingers and toes. And at 10 weeks, their unique fingerprints begin to form. Arizona’s pro-life law has protected unborn children for over 100 years, and the people of Arizona, through their elected representatives, have repeatedly affirmed that law, including as recently as 2022. We celebrate the Arizona Supreme Court’s decision that allows the state’s pro-life law to again protect the lives of countless, innocent unborn children.”

Gov. Katie Hobbs reacted to the ruling, calling it absolutely devastating for Arizona women and families.

"Arizonans do not support extreme abortion bans, Arizonans do not want politicians and the government dictating their personal health care decisions, and Arizonans do not want their freedoms taken away," said Hobbs in a statement.

Questions remain about when abortion ban will take effect and how it will be enforced

Mayes on Tuesday morning told reporters her office is already exploring legal options for pushing back against the ruling. And she vowed not to enforce the law.

“As long as I am attorney general of the state of Arizona, no woman or doctor will be prosecuted under this draconian law,” Mayes said. "Not by me or any county attorney serving in our state. Not on my watch."

Hobbs last year issued an executive order giving Mayes — not the state’s 15 county attorneys — the final say on enforcing abortion laws.

But Cathi Herrod, with the anti-abortion organization Center for Arizona Policy, questions the legality of that move.

“It is a dereliction of duty for any law enforcement officer, such as the attorney general or county attorneys, to make a blanket statement that they will not enforce the law. That's not their role,” Herrod told KJZZ News. “They do not have the authority to decide they’re not going to enforce any law for any reason.”

The Supreme Court’s ruling delays enforcement of the abortion ban for two weeks, while parties in the case pursue any remaining legal issues. Beyond that, enforcement could be delayed another 45 days based on a 2022 order from the Maricopa County Superior Court.

In a statement, Maricopa County Attorney Rachel Mitchell said the Supreme Court’s ruling raised questions about the state’s abortion laws rather than answering them.

“Even though my job is to enforce the laws, not make them, I urge the governor and Legislature to take advantage of the Arizona Supreme Court’s decision to delay enforcement of the decision and come together to enact a reasonable law,” Mitchell said.

Even though Mayes has promised doctors won’t be punished for performing abortions, some Arizona abortion providers say that wouldn’t be enough to reassure them whenever the law goes into effect.

Representatives for Planned Parenthood Arizona, the state’s largest abortion provider, said the organization expects to be able to continue providing abortions up to 15 weeks of gestation at least through mid-May, during the delay in enforcement. But they said they expect to soon begin scaling up the organization’s patient navigator program, which connects Arizona patients with clinics in other states.

Dr. Atsuko Koyama, an abortion provider at Camelback Family Planning, said at a news conference Tuesday, “I will practice medicine within the confines of the law.”

Koyama said she worried what the law, which allows abortions only when the life of the mother is at risk, will mean for her and other doctors when it takes effect.

“It criminalizes me for providing essential health care.” Koyama said. “You have to decide, is she enough at death’s door? How do you define that? Is it 15 minutes until death? Thirty minutes?”

Mayes said her office will work to keep in place a lower court’s stay, which blocks enforcement of the law. And she noted an effort is already underway to put a measure on 2024 ballots that would enshrine abortion rights in the state Constitution and allow the procedure until about 24 weeks.

“I look forward to the people of Arizona having their say in the matter,” Mayes said.

More stories from KJZZ

Katherine Davis-Young is a senior field correspondent reporting on a variety of issues, including public health and climate change.