Arizona Repeals Extreme Abortion Ban From 1864

Update Tuesday, May 3, 9:05 a.m. PT: In Arizona, after weeks of delay, the state Senate finally voted Wednesday to repeal the state’s 1864 abortion ban. The Senate is Republican-controlled—all 11 Democrats and two of the 19 Republicans joined them to vote to repeal the ban. However, because the legislature did not add an emergency provision, the ban will stay in place before the repeal takes effect—meaning that there is going to be a window where abortion is fully banned in the state. Advocates, including Democratic Gov. Katie Hobbs, are hoping that the state’s Supreme Court delays the implementation of the ban in order to reduce or eliminate this window.

“Arizona women should not have to live in a state where politicians make decisions that should be between a woman and her doctor,” Hobbs said in a statement. “While this repeal is essential for protecting women’s lives, it is just the beginning of our fight to protect reproductive healthcare in Arizona. I will continue to call on the legislature to pass the Arizona Right to Contraception Act and protect [in vitro fertilization] from ongoing attacks. And I encourage every Arizonan to make their voices heard this November when abortion rights will be on the ballot.”

Abortion rights protesters at a rally at the Tucson Federal Courthouse in Tucson on July 4, 2022. (Sandy Huffaker / AFP via Getty Images)

Alliance Defending Freedom Seeks to Persuade Arizona Supreme Court That Not All Life-Saving Abortions Are Emergencies

Anti-abortion advocates in Arizona are arguing that physicians should not be allowed to perform life-saving terminations—exactly the kind of cruel dystopian twist we have come to expect post-Roe.

On Dec. 13, six Republican-appointed justices of the Arizona Supreme Court heard arguments in Planned Parenthood Arizona v. Mayes/Hazelrigg over whether an 1864 law banning abortion should take precedence over the state’s 2022 15-week gestational ban. Normally made up of seven sitting justices, the court was one judge short, as Justice Bill Montgomery recused himself after a now-deleted 2017 Facebook post came to light in which he declared that Planned Parenthood “is responsible for the greatest genocide known to man.”

Even in this bleak post-Roe environment, it is hard to comprehend how a law dating back to Arizona’s territorial days when it was believed that “[t]he paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother” is deciding women’s reproductive rights.

In March of 2022, Arizona’s then-Attorney General Doug Ducey (R) signed a 15-week gestational abortion ban into law. He proudly declared that in “Arizona we know there is immeasurable value in every life—including preborn life.” After 15 weeks, abortion was a crime unless immediately necessary to prevent “death … or a serious risk of substantial and irreversible impairment of a major bodily function.”

At the time, Roe v. Wade had not yet been overturned, and the law was thus unenforceable. But the handwriting was on the wall. Pinning his hopes on a favorable ruling in Dobbs v. Jackson Women’s Health Organization, Ducey tweeted, “Many states are taking similar action to protect life. We hope that the … Court will uphold a similar Mississippi law in the coming weeks.”  

We know now that the Court did more than uphold Mississippi’s law—overturning Roe and returning legal control over abortion to the states. Outraged, the dissenting justices predicted that “whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens.” 

This brings us back to what is at stake in Arizona.

The state’s 15-week gestational ban did not go far enough to satisfy Mark Brnovich, the state’s Republican attorney general at the time. Hoping for a complete abortion ban, he brought a successful court action to have the hold lifted on the 1864 territorial law, which had been in effect since Roe, leaving physicians fearful that they could be prosecuted for performing elective abortions in accordance with the 2022 law. Their dilemma was resolved when the appeals court ruled that they could not be prosecuted under this antiquated law which only kicked in after 15 weeks LMP. 

One result of [overturning Roe] is certain: the curtailment of women’s rights, and of their status as free and equal citizens.

joint dissent by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan

But, anti-abortion advocates pressed on.

In May 2022, Eric Hazelrigg, the medical director of a chain of Arizona anti-abortion centers, intervened in the case, seeking a review of the appeals court decision in the Arizona Supreme Court. If you are wondering what Hazelrigg’s legal stake was in the case—he was approved as an intervenor to protect the interests of the state’s unborn infants. Hazelrigg is represented by counsel from Alliance Defending Freedom, who argued that preservation of the territorial law is necessary to protect unborn children and women who are at “heightened risk of death, illness and psychological trauma,” from abortion and to counter the lies of “abortion businesses like Planned Parenthood” that pressure women “into thinking that abortion is their only option.”

Ultimately, the question before the Arizona Supreme Court narrowed down to not if but how the two laws could be harmonized. Arguing that the appeals court had been correct, the attorney for Planned Parenthood Arizona stressed that the legislature intended to create a “regulatory scheme … to restrict—but not to eliminate” elective abortions. Accordingly, this would be defeated if physicians could be prosecuted under the territorial law for performing elective abortions within the 15-week gestational limit, as this would render the 2022 law a complete nullity.

In sharp distinction, opposing counsel argued that when read in harmony with the territorial ban, the 2022 law does not create a right to an elective abortion within that timeframe, but rather only authorizes physicians to perform life-saving terminations. Thereafter, to fully protect the state’s interest in protecting the unborn, a physician may not perform an abortion unless it is immediately necessary to prevent the death or permanent bodily impairment of the pregnant woman. 

In the kind of cruel dystopian twist we have come to expect in the post-Roe landscape, he insisted that not all life-saving abortions are emergencies, and reading the two laws together effectively means that a pregnant person with a life-threatening cancer or heart condition must be at death’s door to have an abortion.

We have seen the horror of this play out in Texas and in the case of the Oklahoma woman with a cancerous molar pregnancy who was told by doctors she was not sick enough for them to perform an abortion. The best they could offer was for her to sit in the hospital parking lot until she was “crashing’” or “fixing to have a heart attack.'”

It is important to bear in mind that a victory before the Arizona Supreme Court simply avoids having Arizona move into the group of states where abortion is completely banned—a distinction that, according to the Guttmacher Institute, it would share with 14 other states.  

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Shoshanna Ehrlich is professor emerita of women’s, gender and sexuality studies at the University of Massachusetts Boston. Her books include Who Decides: The Abortion Rights of Teens and the co-authored Abortion Regret: The New Attack on Reproductive Freedom. She is currently collaborating with the Planned Parenthood League of Massachusetts’ ASPIRE Center for Sexual and Reproductive Health on a minors’ abortion rights and access project.