The Arizona Supreme Court made a landmark ruling on Tuesday, declaring that the state is obligated to uphold a law dating back 123 years that prohibits all abortions except in cases where the mother’s life is at risk. This law, established in 1864, also stipulates a prison term of two to five years for those performing abortions. The justices deliberated on the matter during the case of Planned Parenthood of Arizona v.
Mayes/Hazerigg in December, addressing whether the state’s 15-week abortion restriction implemented in March 2022 supersedes the older legislation. Although the court did not assess the constitutionality of the 1864 law, it delivered a 4-2 ruling with one recusal, affirming that the older law remains “enforceable” in preference to the more recent 15-week limit.
“We consider whether the Arizona Legislature repealed or otherwise restricted [the old law] by enacting…the statute proscribing physicians from performing elective abortions after fifteen weeks’ gestation,” Justice John Lopez wrote for the majority opinion. “This case involves statutory interpretation—it does not rest on the justices’ morals or public policy views regarding abortion; nor does it rest on [the old law’s] constitutionality, which is not before us.”
“Absent the federal constitutional abortion right, and because [the fifteen-week limit] does not independently authorize abortion, there is no provision in federal or state law prohibiting [the 1864 law’s] operation. Accordingly, [the 1864 law] is now enforceable,” Lopez continued.
The Arizona Supreme Court ultimately upheld a lower court’s ruling to lift an injunction against the near-total ban. However, they temporarily halted the full implementation of the law for a period of 14 days to give the involved parties time to determine their next steps. Additionally, the state’s highest court sent the case back to the trial court for potential review of any remaining constitutional issues.
“The abortion issue implicates morality and public policy concerns, and invariably inspires spirited debate and engenders passionate disagreements among citizens,” the opinion reads. “A policy matter of this gravity must ultimately be resolved by our citizens through the legislature or the initiative process. Today, we decline to make this weighty policy decision because such judgments are reserved for our citizens. Instead, we merely follow our limited constitutional role and duty to interpret the law as written.”
In Arizona, pro-abortion activists are making progress with their efforts to establish a constitutional right to abortion. The state supreme court recently made a decision in line with this movement. A coalition of organizations, including ACLU of Arizona, Affirm Sexual and Reproductive Health, Arizona List, Healthcare Rising Arizona, NARAL Arizona, and Planned Parenthood Advocates of Arizona, announced that they have gathered over 500,000 signatures in support of the proposed amendment.
This surpasses the required number of 383,923 signatures needed for the amendment to be considered for the November ballot. If the measure is included on the ballot, it would require a simple majority to be passed. Arizona is just one of several states where pro-abortion activists are actively working to enshrine the right to abortion in law.
