Arizona Supreme Court Upholds 1864 Law Limiting Nearly All Abortions

The Arizona Supreme Court issued a historic decision on Tuesday, ruling that the state must abide by a 123-year-old law which bars all abortions except to save the life of the mother. 

The law, which goes back as far as 1864, also calls for a prison sentence of two to five years for abortionists. Justices heard arguments in the case, Planned Parenthood of Arizona v. Mayes/Hazerigg, in December, and were asked to answer whether Arizona’s 15-week abortion limit signed into law in March of 2022 overrides the older law. 

While the court did not rule on the constitutionality of the 1864 law, the court issued a 4-2 decision with one recusal finding that the 1864 law is “enforceable” over the newer 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“We consider whether the Arizona Legislature repealed or otherwise restricted [the old law] by enacting…the statute proscribing physicians from performing elective abortions after fifteen weeks’ gestation,”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 affirmed a lower court’s decision vacating an injunction against the near-total ban, but stayed the total enforcement of the law for 14 days to allow for parties to decide how to pursue further action. The state’s high court also remanded the case to trial court for potential consideration of remaining constitutional challenges.

“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.”

The state supreme court decision comes as pro-abortion activists are moving forward with a proposed amendment that would create a constitutional right to abortion in Arizona.

Arizona for Abortion Access — a coalition of groups including ACLU of Arizona, Affirm Sexual and Reproductive Health, Arizona List, Healthcare Rising Arizona, NARAL Arizona, and Planned Parenthood Advocates of Arizona — said last week that they had amassed more than 500,000 signatures, well past the 383,923 required for the proposed amendment to qualify for the ballot in November. If the abortion measure makes it on the November ballot, it would need a simple majority to pass.

Arizona is one of nearly a dozen states where pro-abortion activists are working to codify the right to kill the unborn.

The case is Planned Parenthood Arizona v. Mayes/Hazelrigg, No. CV-23-5-PR in the Supreme Court of Arizona

Katherine Hamilton is a political reporter for Breitbart News. You can follow her on X @thekat_hamilton.

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