Explained: What is 160-year-old abortion ban upheld by Arizona Supreme Court?

In a landmark judgment, the Arizona Supreme Court approved the prohibition of nearly all abortions, significantly changing the legal framework in the state in regard to terminating pregnancies.

The court ruled 4-2 in favour of the anti-abortion law.

The 1864 law predates the statehood of Arizona and offers no exceptions in cases of rape, incest or danger to the mother's life. The court also suggested that doctors could be prosecuted in the state under the law.

The decision is likely to affect clinics, women and their health in the state. In a November referendum, Arizona might be able to reverse the decision.

Terminating a pregnancy was already barred in Arizona at 15 weeks of gestation. A lower court recently stated in a decision that doctors couldn't be charged for terminating a pregnancy up until 15 weeks.

In August 2023, the Supreme Court decided to review the case the Alliance Defending Freedom, a right-wing law firm, appealed against the lower court's judgement.

States in the United States were allowed to adopt abortion bans after the US Supreme Court overturned the landmark 1973 ruling in Roe v. Wade in June 2022.

What does the law entail?

The law states that abortion is punishable with two to five years of imprisonment, other than when the mother's life might be at risk.

It prosecutes “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”.

The ruling added, “In light of this Opinion, physicians are now on notice that all abortions, except those necessary to save a woman’s life, are illegal.”

Additional criminal and regulatory sanctions are also applicable against abortions which might be carried out after 15-week-long pregnancies.

Associated Press reported that Lawyers for Planned Parenthood Arizona stated that criminal penalties will only be levied against doctors carrying out the abortions.

While the court said the law would not be enforced for at least the next two weeks, plaintiffs believe it could take up to two months, AP reported.

What did the court say?

Arizona Justice John Lopez said that the state's legislature “has never affirmatively created a right to, or independently authorized, elective abortion”, Reuters reported.

Lopez added, “We defer, as we are constitutionally obligated to do, to the legislature's judgment, which is accountable to, and thus reflects, the mutable will of our citizens.”

How did leaders react?

President Joe Biden released a statement saying, “Millions of Arizonans will soon live under an even more extreme and dangerous abortion ban, which fails to protect women even when their health is at risk or in tragic cases of rape or incest. This cruel ban was first enacted in 1864—more than 150 years ago, before Arizona was even a state and well before women had secured the right to vote. This ruling is a result of the extreme agenda of Republican elected officials who are committed to ripping away women’s freedom.”

He added, “Vice President Harris and I stand with the vast majority of Americans who support a woman’s right to choose. We will continue to fight to protect reproductive rights and call on Congress to pass a law restoring the protections of Roe v. Wade for women in every state.”

Arizona's Governor Katie Hobbs, a Democrat, said that it was the state's “dark day”.

Hobbs added that she would do everything in her power to maintain access to reproductive care in Arizona. Last year, the governor issued a comprehensive executive order that prohibited county attorneys from prosecuting women who undergo abortions and doctors who conduct them. When asked if her directive would be challenged, Hobbs said, “Bring it on!”

Arizona Attorney General Kris Mayes said, “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.”

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