Arizona's 1864 Abortion Law: A Historical Overview

Arizona's 1864 abortion law, which was passed during the Civil War, mandated a near-total ban on abortions, only permitting them if the mother's life was in danger. The law, which was repealed in May 2024, has sparked debates and protests, with Democrats and abortion rights groups working to protect reproductive rights and choice. The law's repeal has been a significant issue in the 2024 election, with voters indicating that abortion access is a critical issue.

The 1864 law was repealed in September 2024

The 1864 law, which predated Arizona's statehood, made abortion illegal in all cases except when the mother's life was at stake. It included no exceptions for rape or incest. The Arizona Supreme Court's decision to uphold this law sparked a national backlash, and Governor Hobbs, along with other Arizona politicians, called for its immediate repeal.

Despite opposition from some Republican lawmakers, Democrats, with the support of a number of Republicans, were able to swiftly move a repeal bill to the governor's desk. Governor Hobbs had been a vocal opponent of the 1864 law and had previously called for its repeal. The new law allows women access to abortion and provides legal clarity for medical providers.

With the repeal of the 1864 law, abortion in Arizona is now legal with certain restrictions. Doctors can perform abortions up to 15 weeks of gestation, and abortion is legal at any point in the pregnancy if a doctor determines that there is a medical emergency. The medication abortion drug mifepristone remains legal in Arizona. However, there are still various regulations and restrictions on abortion care in the state.

The law only permits abortions to save a patient's life

The 1864 abortion law in Arizona was reinstated by the state's Supreme Court in April 2024. This law, which dates back to when Arizona was a territory, allows abortions only if the patient's life is in danger. There are no exceptions for rape or incest.

The law states that "a person who provides, supplies or administers to a pregnant woman, or procures such a 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," will be prosecuted. The law carries a sentence of two to five years in prison upon conviction.

The Arizona Supreme Court's ruling stated that "physicians are now on notice that all abortions, except those necessary to save a woman's life, are illegal." This means that doctors who perform abortions for any reason other than saving the patient's life are subject to criminal penalties and could face prison time.

The law's impact on women's access to healthcare is a significant concern. Women who cannot afford to travel out of state to seek abortions elsewhere will be forced to continue with unwanted or dangerous pregnancies. This will result in uneven healthcare access and put women's lives at risk.

In response to the ruling, there have been calls for the law to be repealed or for voters to approve a constitutional amendment protecting abortion rights in the state. In November 2024, Arizona voters will have the opportunity to vote on a ballot measure that would enshrine abortion rights into the state constitution, guaranteeing the procedure as a right up to 24 weeks of gestation.

The law does not make exceptions for rape or incest

The Arizona Supreme Court's ruling to uphold the 1864 abortion law bans the procedure in almost all cases, including those of rape or incest. The law only permits abortions to be carried out if the mother's life is in danger. This means that victims of rape or incest who become pregnant will not be able to legally access abortion services in Arizona unless their life is at risk. The lack of exceptions for rape or incest in the 1864 law has been widely criticized and denounced, even by some Republicans who have historically supported abortion restrictions.

The absence of exceptions for rape and incest in the 1864 law highlights the extreme nature of the ban and the potential harm it could cause to victims of sexual violence. It also underscores the lack of consideration for the physical and mental health risks that pregnant individuals may face, particularly in cases of rape or incest. This lack of consideration for the well-being of pregnant people has been a significant concern for reproductive rights advocates and healthcare providers.

The impact of the law on victims of rape or incest is severe. They are forced to carry unwanted pregnancies to term, enduring physical, emotional, and psychological consequences. The trauma and distress associated with such pregnancies can be profound, and the lack of access to safe and legal abortions only exacerbates their suffering. The law effectively denies them agency over their own bodies and forces them to continue with pregnancies against their will.

The lack of exceptions in the 1864 law also disregards the complex ethical and moral dilemmas faced by victims of rape or incest. These individuals are confronted with incredibly difficult decisions, and the absence of legal abortion options further compounds their distress. The law fails to recognize the unique circumstances and challenges faced by victims, instead imposing a blanket ban that ignores their rights, autonomy, and well-being.

The Arizona 1864 abortion law, with its lack of exceptions for rape or incest, has far-reaching implications for reproductive rights, healthcare access, and social justice. It underscores the urgency of ongoing efforts to protect and expand access to safe and legal abortions, ensuring that individuals have control over their own bodies and reproductive choices, regardless of the circumstances of their pregnancies.

The law was passed before Arizona became a state

The 1864 abortion law in Arizona was passed before Arizona became a state. The law, which was passed when Arizona was still a territory, was first adopted in 1864 and later recodified in 1901, 1913, 1928, and 1977. The law makes abortion illegal in all cases except when the mother's life is at stake.

In April 2024, the Arizona Supreme Court ruled that the state could enforce this long-dormant law, which had been blocked since the Roe v. Wade decision in 1973. This ruling was made in the context of the U.S. Supreme Court's 2022 Dobbs v. Jackson Women's Health Organization decision, which eliminated the constitutional right to abortion and sent the power to regulate abortion procedures back to the states.

The 1864 law in Arizona is a near-total abortion ban, with no exceptions for rape or incest. It allows abortions only if the mother's life is in danger. This law predates Arizona's statehood, which was achieved on February 14, 1912.

The Arizona governor, Katie Hobbs, has called for the repeal of the 1864 abortion ban. Hobbs has denounced the regulation, stating that it was passed by 27 men before Arizona became a state, at a time when women could not even vote. She has also expressed concern that the ban will result in uneven healthcare access for women, as those who can afford to leave the state to seek abortions elsewhere will do so, while those who cannot shoulder the cost will be forced to continue with unwanted or dangerous pregnancies.

In response to the Arizona Supreme Court's ruling, Hobbs issued an executive order concentrating prosecutorial authority for abortion law violations in the Arizona Attorney General's office. This order preemptively barred any of the state's county attorneys from using Arizona's abortion laws to take doctors to court. However, the legal strength of this executive order has yet to be tested in court.

The law was reinstated by the Arizona Supreme Court in April 2024

On April 9, 2024, the Arizona Supreme Court ruled that the state could enforce its 1864 law criminalizing all abortions except when the mother's life is at stake. The decision, which was issued by a 4-2 vote, overturned a lower court ruling that had concluded doctors could not be prosecuted for performing abortions in the first 15 weeks of pregnancy. The 1864 law, which predates Arizona's statehood, provides no exceptions for rape or incest and allows abortions only if the mother's life is in jeopardy.

The ruling was met with strong opposition from abortion rights advocates, who gathered outside the Arizona Supreme Court to speak out against the ban. Arizona Attorney General Kris Mayes called the ruling "unconscionable" and "an affront to freedom." Mayes also stated that the court's decision to reimpose a law from a time when women couldn't vote would go down as a "stain" on the state. Planned Parenthood Arizona also reacted to the state's Supreme Court ruling, with lawyers arguing that the Arizona legislature intended to restrict rather than completely ban abortion.

The reinstatement of the 1864 abortion law in Arizona had significant political implications, especially in the context of the upcoming 2024 elections. Arizona is considered a critical battleground state, and the abortion issue was expected to play a pivotal role in influencing voters' decisions. Democrats seized on the ruling, blaming former President Donald Trump for the loss of abortion access due to his appointment of conservative justices to the U.S. Supreme Court, which led to the overturning of Roe v. Wade in 2022.

However, the impact of the ruling on the elections was complex. While some voters in Arizona and other states indicated that abortion was a crucial issue for them, others expressed a willingness to vote for Republican candidates despite their opposition to abortion rights. This dynamic created a challenge for Democratic candidates, who struggled to translate support for abortion rights into votes for their candidates.

In the aftermath of the ruling, there were efforts to repeal the 1864 abortion law in Arizona. Governor Katie Hobbs called for the immediate repeal of the law and urged the state legislature to act. Despite these efforts, the law remained in place for several months, with abortion services in the state restricted to cases where the mother's life was in danger.

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