Arizona's antiquated abortion ban back in effect, but could hit multiple road blocks

Even anti-abortion politicians in the state are voicing concerns.

Yesterday, the Arizona Supreme Court ruled by a 4-2 vote that the state may enforce a primordial abortion ban, which was revived after the Supreme Court nullified Roe v. Wade in 2022. 

The ban, were it to officially be enforced, would only make exceptions to protect the life of the mother. 

With the Dobbs v. Jackson Women’s Health decision in 2022, the ruling opinion argued, Arizona’s previous legal interpretation of Roe and its sister bill (a case relevant only to Arizona named Nelson v. Planned Parenthood of Tucson that is only relevant to Arizona) were no longer valid. 

And because the Arizona Legislature never repealed the original abortion ban, the Court explained in not so simple terms, the voiding of Roe by the highest court in the land invalidated previous decisions within the Arizona legal code. This means the 1864 Howell code — which criminalizes abortions and was created before Arizona became a state — would be in effect. 

But, according to the state’s Supreme Court, a formalizing of this ban occurred in 1928 via the state’s penal code, thus making it legitimate. 

“To date, our legislature has never affirmatively created a right to, or independently authorized, elective abortion. 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,” the court wrote in its conclusion. 

The court, however, will stay an enforcement of the original ban for two weeks to allow for an appeal. Following the proclamation, Kris Mayes, the state’s attorney general, said she would not impose any penalties on those seeking reproductive healthcare. 

"This is far from the end of the debate on reproductive freedom,” Mayes said at a press conference. “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.”

President and CEO of Planned Parenthood Arizona, Angela Florez, also responded to the ruling by saying that Planned Parenthood facilities in the state would remain open. 

On the national level, President Joe Biden released a statement condemning the court's ruling. 

“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.” the president wrote. “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.”

But the legal conundrum may have a more straightforward answer: Pro-abortion activists across the state have collected over 500,000 signatures from residents to create a referendum on abortion rights in Arizona. Voters will then be able to codify abortion protections in November.  

Meanwhile, MAGA acolytes like Kari Lake, who ran as the Republican nominee for Arizona’s governorship in 2022 and is the GOP nominee for the state’s Senate race, were surprisingly reserved about the ruling. 

“I am calling on Katie Hobbs and the state legislature to come up with an immediate common sense solution that Arizonans can support,” Lake said. “Ultimately, Arizona voters will make the decision on the ballot come November.”

“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,” Lake continued.

Lake had previously called the archaic legislation a “great law.” 

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Jamie Larson