Arizona’s Supreme Court has ruled that an 1864 territorial law backed by the state’s former Republican attorney general can be enforced, creating a near-total abortion ban except to save a mother’s life and paving the way to punish health providers with up to five years of prison time. The 160-year-old Civil-War era law was enacted before women had the right to vote and before Arizona became a state in 1912.
In a 4-2 ruling Tuesday morning, Arizona’s Supreme Court noted the absence of a “federal constitutional abortion right” after the U.S. Supreme Court’s ruling in 2022 overturning Roe v. Wade. In that absence of federal protections for abortions, the justices waded into a complicated statutory history, starting with an 1864 legal code that prohibited abortions in almost all cases.
All of Arizona’s Supreme Court justices are GOP appointees placed in their seats by former Republican governors Doug Ducey and Jan Brewer. All but two of the seven sitting justices are men.
On Tuesday, Gov. Katie Hobbs railed against gender inequalities and spoke directly to Arizona women in an election year that is expected to be broadly influenced by access to abortion healthcare.
“This archaic law, which was written by men 48 years before Arizona even became a state, threatens the lives of countless women and strips us of control over our bodies,” Hobbs said. “My message to Arizona women is this: I will not stop fighting until we have fully secured the right to reproductive health care in our state.”
The fight over abortion in Arizona reached the highest levels of American politics when President Joe Biden posted about the ruling on X Tuesday, calling it a “more extreme abortion ban that fails to protect women when their health is at risk or in cases of rape or incest.” Biden stressed that the 1864 law is “back because of Republican elected officials committed to ripping away women’s freedom.”
Earlier in the week, former President Donald Trump, the presumptive Republican presidential nominee, declined to endorse a national abortion ban, saying in a video that abortion policy should be left to the states. “And whatever they decide must be the law of the land — in this case, the law of the state,” he said
Abortion on the ballot
Groups are gathering signatures to put questions about abortion access to voters this year.
• The Arizona Abortion Access initiative would add a fundamental right to abortion to the Arizona Constitution. Read the full text.
To get on the ballot, Arizona for Abortion Access needs at least 383,923 valid signatures by the July 4 deadline. The group has been collecting signatures since September and said earlier this month that it has more than 500,000 signatures collected so far. Get information about signing the petition.
• The It Goes Too Far campaign is the main group opposing this ballot initiative. Learn more.
The next political battleground will be a ballot measure known as the Arizona for Abortion Access initiative that could change the state constitution to add a fundamental right to abortion. Groups petitioning to put the question to Arizona voters this year have until July 4 to collect enough signatures. The It Goes Too Far campaign launched in January is the main opposing drive to defeat the initiative.
Planned Parenthood of Arizona called Tuesday’s decision a “devastating ruling.” Even Ducey — who appointed five of the current seven Supreme Court justices — took to social media Tuesday to balk at the ruling.
“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,” he wrote on X, formerly known as Twitter. “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.”
Abortion-access advocates argued for the majority of Arizonans who support abortion healthcare to some extent. “Despite today’s ruling, Planned Parenthood Arizona will continue to provide abortion services through 15 weeks for a short period of time.”
They are able to do that because a 2022 order bars the state from enforcing the 1864 near-total abortion ban until after the Arizona Supreme Court issues any new mandate.
The Abortion Fund of Arizona, a volunteer-operated organization, said it would continue to help Arizonans get abortion healthcare through its helpline.
Arizona’s abortion laws have changed several times in recent years through various legal challenges, making it confusing to understand what’s allowed.
Still, access to abortion appears to be supported by an overwhelming majority of Arizonans — 91% want abortion to be legal in some cases, according to a September 2022 poll by Noble Predictive Insights (formerly OH Predictive Insights). However, the survey did not provide insight into specifics about the extent to which respondents believed that abortion should be readily available or restricted based on a fetus’ stage of development.
Details of the ruling
Justice John R. Lopez IV referenced the confusion for Arizonans, saying that the “statutory language is ambiguous.” So the justices leaned on “alternative methods” of analysis, “including examining the rule’s historical background, its spirit and purpose, and the effects and consequences of competing interpretations.”
The ruling notes that “Arizona has never independently created a statutory right to abortion.” And because the federal decision in the 1973 Roe v. Wade case was overturned in 2022, eliminating the constitutional right to abortion in the U.S., the 1864 Arizona law “is now enforceable,” Lopez wrote.
In short, the justices decided that Arizona law now prohibits abortion “unless necessary to save a woman’s life.” There are no exceptions for rape or incest.
The justices conclude, “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 may apply to abortions performed after fifteen weeks’ gestation,” the ruling stated.
The 1864 ban enshrined in state statutes not only outlawed abortion, but criminalizes anyone who conducts an abortion or helps a woman obtain medicine for an abortion, with “imprisonment in the state prison for not less than two years nor more than five years.”
However, Hobbs, in a statement following Tuesday’s Arizona Supreme Court ruling, stressed that her executive order from last year “protecting women and doctors from prosecution by extremist county attorneys still stands.”
One of the main legal questions addressed in the ruling is whether the territorial law depended on the U.S. Supreme court decisions.
Resources for Arizonans seeking an abortion
What do you need to know about the repercussions of the Supreme Court decision for you and your community? Send us a note at info@azluminaria.org
- See a list of reproductive rights organizations and resources by Lisa Bunker
- Planned Parenthood Arizona for help navigating abortion care: 480-848-8530
- Tucson Abortion Support Collective for resources in English and Spanish
- Call or text the Miscarriage + Abortion Hotline at 1-833-246-2632
- For information about clinic locations, costs and general information: https://www.ineedana.com
“The abortion issue implicates morality and public policy concerns, and invariably inspires spirited debate and engenders passionate disagreements among citizens. A policy matter of this gravity must ultimately be resolved by our citizens through the legislature or the initiative process,” Lopez wrote.
The seven justices disagreed on forcing Arizonans to live under an 1864 law criminalizing abortion.
Vice Chief Justice Ann A. Scott Timmer along with Chief Justice Robert Brutinel issued a dissenting opinion.
In the dissent, Timmer notes that no language in Arizona’s existing abortion laws depends on “Roe’s continuing enforceability” or that the law “would become inoperative if the Supreme Court overruled Roe.”
Unlike similar laws that have gone into effect, like Mississippi’s abortion ban, Arizona’s version doesn’t have a “trigger clause” that would take effect “upon Roe’s demise.”
“Nothing in the statutory text even arguably constitutes a trigger clause,” Timmer writes.
The dissenting opinion also points to conflicts in state statute — while one permits abortions up to 15 weeks, the other prohibits all abortions with minimal exceptions.
In these cases, Timmer argues, one measure should not override the other, writing that “the courts have a duty to harmonize statutes to rectify conflicts” and avoid “construing one statute as impliedly repealing another.”
Rather, Judge Timmer wrote, the 15-week ban is the more specific statute, meaning “it operates as an exception” to the “near-total ban.”
The judge also argues that the majority decision is fundamentally impossible as their view maintains other Arizona abortion statutes, while the “near-total ban would engulf those provisions without exception.”
Timmer refrained from traditional sparring, saying that ”we simply disagree—vehemently—about what those laws mean. And in my view, the majority mistakenly returns us to the territorial-era abortion statute last operative in 1973. I would leave it to the people and the legislature to determine Arizona’s course in the wake of Roe’s demise. With great respect for my colleagues, I dissent.”
Judges on the Arizona Supreme Court
Chief Justice Robert M. Brutinel appointed by Jan Brewer in 2010
Vice Chief Justice Ann A. Scott Timmer appointed by Jan Brewer in 2012
Justice Clint Bolick appointed by Doug Ducey in 2016. Bolick is up for reelection in November.
Justice John R. Lopez IV appointed by Doug Ducey in 2017
Justice James P. Beene appointed by Doug Ducey in 2019
Justice William G. Montgomery appointed by Doug Ducey in 2019
Justice Kathryn H. King appointed by Doug Ducey in 2021. King is up for reelection in November.
The abortion ban will not go into effect for at least 60 days, according to a joint statement Tuesday by Arizona Republican lawmakers, Senate President Warren Petersen and House Speaker Ben Toma, on the Supreme Court abortion ruling.
A message tied to the statement posted on the Arizona Senate Republicans X account said that the timeline comes from the 15 days it takes for an appellate court to issue a mandate plus the 45-day delay due to the October 2022 agreement by then —Republican Attorney General Mark Brnovich not to enforce the 1864 Civil-War era law until 45 days after the case was resolved.
In the meantime, women in Arizona are now left wondering where they will go for abortion healthcare that could save their lives as the clock ticks on the deadline for enacting the 1864 law.
Arizona Attorney General Kris Mayes and Pima County Attorney Laura Conover are among the state’s criminal justice leaders who have gone on record saying that they will not prosecute any women or medical providers under what Mayes on Tuesday called a “draconian law.”
However, many medical providers fearing lawsuits or criminal prosecution, depending on the status of the latest twist in court rulings, intermittently suspended abortions over the past two years after Brnovich moved to enforce the 1864 abortion ban.
Here’s what top Arizona officials said about the ruling on Tuesday.
Arizona Gov. Katie Hobbs, Democrat:
“Like millions of women across Arizona, I am reeling from the Supreme Court’s callous decision to uphold the 1864 total abortion ban. This archaic law, which was written by men 48 years before Arizona even became a state, threatens the lives of countless women and strips us of control over our bodies. Today seems like a dark day, but I assure Arizona women that the fight for our reproductive freedoms is far from over.
“I want to make it clear that my executive order protecting women and doctors from prosecution by extremist county attorneys still stands.
“We are taking immediate action to uphold your reproductive freedoms. I joined with legislative champions and abortion rights advocates to call for a repeal of this ban and guarantee access to contraception. And in the upcoming months I will continue working with lawmakers to pass common-sense legislation to make sure Arizonans can continue to receive the reproductive health care they need.
“I’ve personally experienced the anguish of losing a pregnancy, and I know it’s outrageous to have the government tell you that the best decision for your health or future could now be considered a crime.
“My message to Arizona women is this: I will not stop fighting until we have fully secured the right to reproductive health care in our state. I refuse to let radical extremists take control over women’s bodies or tell my 22-year-old daughter that she has less rights than I did when I was her age.”
Former Republican Arizona Gov. Doug Ducey on X:
“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.”
Arizona Attorney General Kris Mayes, Democrat:
“The decision made by the Arizona Supreme Court today is unconscionable and an affront to freedom. 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.
“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. This is far from the end of the debate on reproductive freedom, and I look forward to the people of Arizona having their say in the matter. And let me be completely clear, as long as I am Attorney General, no woman or doctor will be prosecuted under this draconian law in this state.”
Pima County Attorney Laura Conover, Democrat:
“The Pima County Attorney’s Office is disappointed that the Arizona Supreme Court chose to side with confusion and uncertainty for Arizona residents seeking abortion services in the aftermath of the federal decision to overturn the protections of Roe v. Wade.
“This decision will result in a legal chilling effect on Arizonans who wish to obtain abortion services regardless of the circumstances that lead to their decision, and for those in the medical community who might provide them. The result of this will ultimately cause an increase in unsafe abortions and threaten the liberties of those involved because the criminalization of abortions will not end the need or desire of those who seek services.
“As we have said since the U.S. Supreme Court decided to overturn the Constitutional protections provided by Roe, this Office does not intend to spend precious time or resources on the prosecution of those who are put in this impossible position, or medical providers. We are reassured that other elected leaders and law enforcement partners in Pima County have joined us in this intention.
“We held out hope that the briefings and arguments made by Pima County Chief Civil Deputy Sam Brown before the Arizona Supreme Court on Dec. 12, 2023, would help preserve the right to legal abortions of up to 15 weeks of pregnancy. Instead, the Court’s decision keeps alive the archaic ideas of returning to a near-total ban on abortions that dates back to the Civil War era and offers no exceptions short of the imminent death of the patient.
“Now we place our faith in the voters of Arizona, who are expected to have the opportunity to decide whether legal access to reproductive services will be upheld through an initiative intended to be on the November ballot.
“When the U.S. Supreme Court overturned Roe, they stated that the abortion issue should be made at the state level. We have since seen states stand up for legal abortions across the country and we trust that the voters of Arizona will do the same and have the final say on those legal rights.”
Tucson Mayor Regina Romero, Democrat:
“Today’s decision by the Arizona Supreme Court is devastating to women, girls and people who can become pregnant across our state. The near total abortion ban puts the lives of people across our state at risk! This is a huge step backwards, and let’s not misunderstand, this decision is about control, control over women’s bodies.
“We know that criminalizing abortion will not stop people from having abortions — it will simply make them more unsafe. I will continue to do everything in my power, working with our Governor, Attorney General, and County Attorney to fight for access to abortion and reproductive healthcare.”
Angela Florez, president and CEO of Planned Parenthood Arizona:
“Today’s deplorable decision sends Arizona back nearly 150 years. We know that today’s ruling does not reflect the will of the people, as Arizonans are overwhelmingly in favor of abortion access. Instead, it is the latest card in anti-abortion extremists’ deck of cruel and harmful tactics to strip Arizonans of their right to live under a rule of law that respects our bodily autonomy and reproductive decisions. It is unfortunate and unacceptable that Arizonans cannot even depend on our Supreme Court to look past personal ideology and impartially apply the law.
“We know that abortion bans, including this one from the Civil War-era, are rooted in America’s legacy of racism and discrimination. This near-total abortion ban will be catastrophic for patient care and will have the greatest impact on Black, Indigenous, Latino, and other people of color, young people, LGBTQ+ people, and undocumented people.
“Let me be clear, this is not the end of our fight. This law has no place in Arizona. While today we feel frustrated and dismayed with the Court for stripping our legal right to essential health care, we must harness our anger and take action. We must spread the word and urge our lawmakers to support reproductive freedom and bodily autonomy.”
U.S. Sen. Mark Kelly, D-Ariz., on X:
“Today’s decision by the Arizona Supreme Court reinstitutes a total abortion ban from the 1800s. This is the biggest step backward since the repeal of Roe v. Wade.
“Make no mistake, this is happening because of Donald Trump. We must work to restore abortion rights this November.”
U.S. Sen. Kyrsten Sinema, I-Ariz.:
“A woman’s health care choices should be between her, her family, and her doctor. Today’s decision by the Arizona Supreme Court endangers women’s health, safety, and well-being.
“Arizonans should not be forced to travel out of state just to receive basic, sometimes even life-saving, health care. Doctors and hospitals should not be punished for providing health care to their patients. Throughout my over 20 years of public service I’ve always supported women’s access to reproductive care, and I will work with anyone to protect Arizona women’s ability to make their own decisions about their futures.”
U.S. Rep. Juan Ciscomani, R-Ariz.:
“Today’s ruling is a disaster for women and providers. In Arizona, our 15 week law protected the rights of women and new life. It respected women and the difficult decision of ending a pregnancy — one I will never personally experience and won’t pretend to understand. As my record shows, I’m a strong supporter of empowering women to make their own healthcare choices and I oppose a national abortion ban.
“The territorial law is archaic. We must do better for women and I call on our state policy makers to immediately address this in a bipartisan manner.”
State Sen. T.J. Shope, R-District 8, on X:
“Just a few years ago, when I voted to limit abortions to 15-Weeks (almost four months) in Arizona, I believed then, as I do now, that 15 weeks is what my district believes to be an appropriate timeline. Outreach from my constituents confirmed that to be the case. Today’s Arizona Supreme Court decision reinstating an Arizona Territorial-era ban on all abortions from more than 150 years ago is disappointing to say the least and has ignored our legislative intent. I will immediately work with my legislative colleagues to repeal the territorial law so that the policy we placed in Statute, just two years ago, that places reasonable limitations on abortion that a majority of Arizonans support, can stand.”
Kari Lake, Republican U.S. Senate candidate and former Fox 10 News anchor, on X:
“In addition to covering the state of Arizona as a fair and honest journalist for 27 years, I have traveled to every corner of this state on the campaign trail. I speak to more Arizonans than anyone and it is abundantly clear that the pre-statehood law is out of step with Arizonans.
“I am the only woman and mother in this race. I understand the fear and anxiety of pregnancy, and the joy of motherhood. I wholeheartedly agree with President Trump – this is a very personal issue that should be determined by each individual state and her people. I oppose today’s ruling, and I am calling on Katie Hobbs and the State Legislature to come up with an immediate common sense solution that Arizonans can support. Ultimately, Arizona voters will make the decision on the ballot come November.”
U.S. Rep. Ruben Gallego, Democrat U.S. Senate candidate and a former Marine Corps member, in posts on X:
“The fact that women in Arizona now have less rights than they ever had, have no control of their bodies … it’s just inhumane,” he said in a video.
“The state Supreme Court has had their say; we will have our say. We will fight, and we’re gonna fight all the way to November so we can get abortion rights back for our women in Arizona and turn back this horrible tide.”
In the text of the post he added, “Today’s ruling is devastating for Arizona women and their families. This is not what Arizonans want. This decision rips away the right for women to make their own healthcare decisions with their doctors.”
In a following post, Gallego criticized Lake for flip-flopping on the 1864 ban and shared audio of her statements in 2022. “I won’t let Kari Lake distort the record. She called this law a “great law” – even though it will ban nearly all abortions, including in cases of rape or incest.”
Former U.S. Rep Gabrielle Giffords, D-Tucson, on Twitter:
“The AZ Supreme Court upheld a 160-year-old abortion ban. This is heartbreaking, wrong, and sets our state back in time.
“Everything is on the line this November. We must elect leaders who will restore reproductive freedom and prioritize the health and safety of women.”
Leisa Brug, campaign manager for It Goes Too Far, a group that opposes the Arizona Right to Abortion ballot initiative:
“Abortion remains legal up to 15-weeks in Arizona while waiting further potential action from the courts. Reasonable people can have different opinions on abortion and policy. But the data is clear: Nearly 80% of voters support reasonable limits on abortion. Arizonans expect health and safety standards, and for parents to be involved in their minor daughter’s decision. A proposed abortion amendment that eliminates all of that and expands abortion beyond what voters support is not the answer. Abortion law can be changed without putting girls and women at risk.”
Alejandra Gomez, executive director of Living United for Change in Arizona (LUCHA):
“We are not surprised by the Arizona’s Supreme Court’s blatant extremism. Their ruling today puts the lives of countless Arizonans at risk and robs us of our most basic rights—the right to make our own decisions about our own bodies free from government interference. Arizona families deserve the freedom to make their own decisions about pregnancy and abortion. To revert to an 1800’s era near-total ban that was established when women could not vote is completely out-of-step with the majority of Arizonans from across the political spectrum.
“It puts us in line with states like Louisiana and Arkansas where doctors are fleeing and patients are suffering and dying. No matter how you personally feel about abortion, most Arizonans agree these deeply personal decisions should be left to patients, their families, and their medical providers—not politicians.”
John Washington, Carolina Cuellar, Becky Pallack, Chelsea Curtis, Kiara Adams, Irene McKisson, Dianna M. Náñez and Yana Kunichoff contributed to this article
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