In Swing State of Arizona, a Near-Total Abortion Ban From 1864 Takes Effect

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Abortion rights activists protest at the Tucson Federal Courthouse on July 4, 2022. (Sandy Huffaker / AFP via Getty Images)

On Saturday in Arizona, a 15-week abortion ban—signed into law on July 6 by Republican Gov. Doug Ducey—was set to take effect. But before it could, a late Friday ruling from Pima County Superior Court Judge Kellie Johnson green-lighted an anti-abortion law from 1864 that supersedes all other bans, outlawing almost all abortions in the state and penalizing abortion providers who provide the service with two to five years in prison. Abortion is now effectively illegal in the state, making it the 15th U.S. state currently enforcing extreme or total bans on abortion.

The 158-year-old law, with origins before Arizona even established its statehood, reads:

“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.”

The law was in effect until 1973, but was blocked after the U.S. Supreme Court’s ruling in Roe v. Wade. Once the Court overturned Roe this June, Attorney General Mark Brnovich (R) started the process to reinstate the law.

There’s a little over a month until the midterm elections, and Arizona is a battleground for federal and state elections.

  • Gov. Ducey is term-limited and thus ineligible to run for a third consecutive term. The two candidates looking to take his spot are Democrat Katie Hobbs and Republican Kari Lake.
  • AG Brnovich has decided not to run for reelection; Kris Mayes (D) and Abraham Hamadeh (R) both hope to replace him as attorney general.
  • At the national level, Republican candidate Blake Masters is hoping to unseat incumbent U.S. Sen. Mark Kelly (D).

The three Republican candidates—Masters, Lake and Hamadeh—have yet to comment on the Civil War-era law. But 90 percent of Arizona voters agree “each of us should have the freedom to decide how and when we start or grow a family, free from political interference,” according to a February poll from NARAL.

Democrats see the extreme law as an opportunity to mobilize voters. At a joint press conference on Saturday, Democratic candidates Hobbs and Mayes slammed the new ban and vowed to fight for women’s rights.

“[The Republicans] know how absolutely unpopular this law is. They know how indefensible it is. And they know that when Nov. 8 comes, the people of Arizona are going to resoundingly reject this extreme abortion ban, this attack on the people of Arizona,” said Mayes.

If elected, Hobbs vowed, “On day one, I will call a special session of the state legislature to overturn this draconian law.”

President Joe Biden over the weekend made a similar plea to voters on a national level: “If you give me two more senators in the United States Senate, I promise you, I promise you, we’re going to codify Roe and once again make Roe the law of the land.”

The president was referring to the two votes needed to create a filibuster carve-out for specific issues, such as abortion, voting rights and women’s rights. In the Senate, the filibuster means every law has a 60-vote threshold to make it to the floor for a vote—so if at least 60 senators can’t agree to begin discussion on a potential bill, it’s dead on arrival. Along with all Senate Republicans, the two Democrats opposed to filibuster reform are Sens. Kyrsten Sinema of Arizona and Joe Manchin of West Virginia.

“People here understand that everyone should be free to make personal medical decisions and determine when or whether to have children, without government interference,” said Civia Tamarkin, president of the National Council of Jewish Women Arizona which has challenged several Arizona abortion bans. “Access to reproductive health care is vital to women and all who can become pregnant. We will roll up our sleeves, devise ways to help those who need care. Above all, we will vigorously pursue solutions—in the courts, at the legislature, and on the ballot.”

U.S. democracy is at a dangerous inflection point—from the demise of abortion rights, to a lack of pay equity and parental leave, to skyrocketing maternal mortality, and attacks on trans health. Left unchecked, these crises will lead to wider gaps in political participation and representation. For 50 years, Ms. has been forging feminist journalism—reporting, rebelling and truth-telling from the front-lines, championing the Equal Rights Amendment, and centering the stories of those most impacted. With all that’s at stake for equality, we are redoubling our commitment for the next 50 years. In turn, we need your help, Support Ms. today with a donation—any amount that is meaningful to you. For as little as $5 each month, you’ll receive the print magazine along with our e-newsletters, action alerts, and invitations to Ms. Studios events and podcasts. We are grateful for your loyalty and ferocity.

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About

Roxy Szal is the digital editor at Ms. and a producer on the Ms. podcast On the Issues With Michele Goodwin. She is also a mentor editor for The OpEd Project. Before becoming a journalist, she was a Texas public school English teacher. She is based in Austin, Texas. Find her on Twitter @roxyszal.