Arizona abortion law: What to know as near-total ban from 1864 is restored by state supreme court

PHOENIX - The abortion landscape in Arizona has changed once again, after the state's Supreme Court ruled on April 9 that the state government can enforce a long-dormant law that criminalizes nearly all abortions.

The ruling was made over a year after a U.S. Supreme Court decision that overturned Roe v. Wade created a certain degree of legal uncertainty about whether abortion was legal in Arizona.

Here's what to know.

What happened?

The legal ruling came as part of a lawsuit between Planned Parenthood of Arizona, along with Pima County Attorney Laura Conover, and Kris Mayes, in her role as Arizona's Attorney General.

At the center of the issue is an Arizona criminal law known as A.R.S. (Arizona Revised Statutes) 13-3603, which bans nearly all abortions in Arizona.

A.R.S. 13-3603 states:

"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."

According to the Associated Press, A.R.S. 13-3603 dates back to 1864. At the time, Arizona was not even a U.S. state: statehood only came about in 1912.

In their ruling, the state supreme court stated that the state's abortion ban was held unconstitutional after the now-overturned Roe v. Wade ruling, but that the state re-codified the abortion ban in the form of A.R.S. 13-3603, while also enacted, from 1973 to 2022, dozens of abortion statutes which "restricted abortions, including adding many procedural requirements for physicians performing abortions," to the extent allowed by Roe.

Prior to the overturning of Roe, abortion restrictions in Arizona include a 15-week ban that was signed into law by then-Governor Doug Ducey in March 2022.

The fight over abortion in Arizona came about once again after Roe was overturned. According to the ruling, Mark Brnovich, who was the state's attorney general at the time, sought to set aside a ruling that made the abortion ban unenforceable following the Dobbs ruling in 2022, which eliminated the federal constitutional right to abortion. By that point, there were two competing laws on abortion in Arizona: A.R.S. 13-3603 and the 15-week limit, which is now known as A.R.S. 36-2322.

Brnovich's action sparked opposition by Planned Parenthood, according to the court ruling. The organization asserted that while the original foundation for the injunction against the abortion ban - Roe - was no longer applicable, the injunction must still be modified to harmonize the abortion ban with the state's 15-week abortion limit and other relevant laws.

"So the question that the Court was addressing today is: which ban is in effect now?" said attorney Roy Herrera. "Is it the 1864 ban, which is a total ban on abortions, or is it this 15 week ban?"

What did the justices say?

In their ruling, the concurring justices state, among other things, that 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. 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," read a portion of the ruling. "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."

Two justices, however, issued a dissenting opinion on the matter. Among other things, the two justices, namely Chief Justice Robert M. Brutinel and Vice Chief Justice Anna A. Scott Timmer, asserted that the court's majority misread what was labeled in the ruling as ‘construction note,' which they say expressed "only legislative intent and provides absolutely no insight on what the legislature meant by any language in the statute" and is "emphatically not part of the statutory text," as equal to the law's text.

"Instead of using the note as a tool in interpreting any ambiguous language in the statutory text, the majority incorrectly uses the note to create an ambiguity in the text," read a portion of the dissenting opinion. This assertion, however, was denied by the court's majority, in their opinion.

In addition, the two justices said there's no language in the 2022 abortion law that indicates reliance on Roe's existence, and no language suggests it should not be in effect in Roe was overturned.

What does the ruling mean for abortions in Arizona?

The justices said the state can start enforcing the abortion ban in 14 days. During that timeframe, parties can pursue additional legal action.

"So there could be additional legal challenges, but I doubt that they would be successful in the end," said Herrera, who specializes in political law. "I think what we're ultimately faced with, in order to undo this territorial ban, is either passing the abortion measure that will be on the ballot this year, which, again, would reinstate the rights under Roe v. Wade, or electing a legislature that will be willing to actually repeal the ban."

Whether the ban will be enforced, however, is uncertain, as Attorney General Mayes has said that as long as she is the state's AG, "no woman or doctor will be prosecuted under this draconian law in this state."

In a separate statement, Maricopa County Attorney Rachel Mitchell said her office has not received a single request to prosecute an abortion case since Roe was overturned, and she does not anticipate the decision by the state supreme court will change that.

"It is important to remember that under Arizona’s law, women who get an abortion cannot be prosecuted. Today’s ruling does not change that:  women cannot and will not be prosecuted for receiving an abortion. My priority always has been to protect women, not prosecute them," read a portion of Mitchell's statement. "Likewise, I have made it clear that this office will not prosecute abortions that were the result of rape, incest, or molestation.  As a career sex crimes prosecutor, I am keenly aware that the women - and girls - who get pregnant as victims of these crimes are not hypothetical situations - they are very real names and real faces to me."

What's the current state of abortion in the U.S.?

According to a report published by the Guttmacher Institute in March 2024, there were over a million estimated abortions in the formal health care system in 2023 in the U.S., the first full year since Roe was overturned.

This, according to the report, represents a 10% increase in abortions since 2020.

Prior to the April 9 ruling by the Arizona Supreme Court, the Encyclopedia Britannica noted that there are 14 states that have enacted a total ban on abortion with few exceptions.

Could the abortion ban be overturned?

Yes.

In fact, the majority opinion states, as mentioned above, that the concurring justices believe "policy matter of this gravity must ultimately be resolved by our citizens through the legislature or the initiative process."

There are already calls for the abortion ban to be repealed, some of which came from current and former Republican politicians.

The Arizona House Speaker and Arizona Senate President, however, only said they will be "closely reviewing the court's ruling, talking to our members, and listening to our constituents to determine the best course of action for the legislature." Both are GOP members.

"I'm really struck by the number of Republicans who have said, in no uncertain terms, that this is a problematic ruling, it needs to be addressed," said Jon Seaton, a political consultant with Camelback Strategy Group.

The AP has noted that a proposal to repeal the 1864 law is pending before the Arizona Legislature, but it has not received a committee hearing this year. 

Meanwhile, according to the website for the Arizona Secretary of State's office, there is a proposed ballot measure for the November election that would enshrine abortion rights in the state constitution.

The measure would require the state to "not enact, adopt or enforce any law, regulation, or practice" that would deny, restrict, or interfere with the right to abortion before fetal viability, with certain exceptions.

‘Fetal viability’ is defined in the proposed ballot measure as "the point in pregnancy when, in the good faith judgment of a treating health care professional and based on the particular facts of the case, there is a significant likelihood of the fetus's sustained survival outside the uterus without the application of extraordinary medical measures." According to an article published on the National Library of Medicine's website, 24 weeks is considered to be the threshold for fetal viability in the U.S.

The proposed ballot measure, which is also known by its petition serial number I-05-2024, needs 383,923 verified signatures by July 3 in order to appear in the November ballot. In our report on the proposed measure on April 2, leaders of the group backing the measure say they have collected over 500,000 signatures from voters, with plans to collect more.

What do people think about legalized abortions?

According to an April 2023 report issued by the Pew Research Center, 62% of those surveyed state they believe abortion should be legal in all or most cases, compared with 36% who state that abortion, in their opinion, should be illegal in all or most cases.

However, the report notes there is a wide partisan divide on the matter, with 84% of those who identify as Democrats or lean Democratic stating that abortion should be legal in all or most cases, compared to 40% of those who identify as Republicans or lean Republican.