Who Authored Arizona's 1864 Abortion Law?

In 2024, Arizona's Supreme Court ruled to uphold a near-total abortion ban from 1864, which was created before Arizona became a state. The law, which was enforced in April 2024, allows abortions only if the mother's life is in danger and does not make any exceptions for rape or incest. The ruling was a result of a 4-2 split decision, with Justice John R. Lopez IV writing for the court. This decision sparked widespread debate over reproductive rights and led to a wave of protests from reproductive rights advocates. In May 2024, Arizona lawmakers voted to repeal the 1864 law, and Governor Katie Hobbs signed the bill, allowing abortions up to 15 weeks with certain restrictions.

Arizona's 1864 near-total abortion ban

In April 2024, the Arizona Supreme Court ruled to reinstate the 1864 law, overturning a 2022 law that allowed abortions up to 15 weeks of gestation. This ruling was made possible by the U.S. Supreme Court's elimination of the federal constitutional right to abortion in 2022. The decision to reinstate the 1864 law was met with opposition from reproductive rights advocates and Arizona's Democratic governor, Katie Hobbs, who urged the state legislature to repeal the law.

In May 2024, the Arizona legislature voted to repeal the 1864 law, and Governor Hobbs signed the repeal, emphasizing her commitment to protecting reproductive freedoms and keeping politicians out of the doctor's office. With the repeal of the territorial ban, Arizona law now allows abortions until 15 weeks, with an exception to save the life of the mother but without exceptions for rape or incest after the 15-week mark.

The battle over abortion rights in Arizona continued, with abortion rights groups working to put abortion on the November 2024 ballot, aiming to enshrine the right to abortion in the state constitution. The ballot initiative, known as Prop 139, would guarantee the right to abortion until fetal viability, typically around 24 weeks, and allow abortions after that point in cases where the mother's physical or mental health is at risk.

In the lead-up to the November election, Arizona conservatives insisted that the 15-week ban was a reasonable compromise that most Arizonans would support. However, early voting indicated that the ballot initiative to protect abortion rights had overwhelming support, even among Republicans and independents. The outcome of the election will have significant implications for the future of abortion rights in Arizona.

The 2024 repeal of the 1864 law

In 2022, the U.S. Supreme Court eliminated the constitutional right to abortion, sending the power to regulate the procedure back to individual states. In April 2024, the Arizona Supreme Court ruled to reinstate a near-total ban on abortions from 1864, which was created before Arizona became a state. The law, which included no exceptions for rape or incest, allowed abortions to be performed only to save a woman's life.

However, on May 2, 2024, Arizona Governor Katie Hobbs signed a bill repealing the 1864 law. The bill was passed with the support of both Democratic and Republican lawmakers. Hobbs denounced the previous regulation, calling it "a ban that was passed by 27 men before Arizona was even a state." She also emphasised her commitment to protecting reproductive health care in Arizona, stating, "I will continue doing everything in my power to protect reproductive freedoms, because I trust women to make the decisions that are best for them, and know politicians do not belong in the doctor's office."

With the repeal of the 1864 law, abortion in Arizona is now legal with certain restrictions. The new legal framework allows women access to abortion and provides legal clarity for medical providers. The specific restrictions include a requirement for an ultrasound at least 24 hours before the procedure and parental consent or authorisation from a state judge for minors seeking an abortion. Additionally, abortion medication can only be provided by qualified physicians, and only licensed physicians can perform surgical abortions.

The battle over abortion rights in Arizona continues to be a highly contested issue, with abortion access expected to be a critical factor in the upcoming November 2024 elections.

The Arizona Supreme Court's ruling

In April 2024, the Arizona Supreme Court ruled to reinstate a near-total ban on abortions from 1864, which was created before Arizona became a state. The ruling stated that abortions were only legal if the mother's life was in danger. This decision impacted millions of women across the state and sparked a heated debate over reproductive rights.

The ruling was a result of a 4-2 split decision, with Justice John R. Lopez IV writing for the court. Lopez argued that the 2022 law allowing abortions up to 15 weeks of gestation depended on the existence of a federal constitutional right to abortion. Since the U.S. Supreme Court had eliminated that right in the Dobbs v. Jackson Women's Health Organization ruling two years prior, the 2022 law could not overrule the 1864 law.

The Arizona Supreme Court's decision to uphold the 1864 law faced strong opposition from reproductive rights advocates, who gathered outside the court to speak out against the ban. The ban included no exceptions for rape or incest and allowed only abortions performed to save the patient's life.

Following the court's ruling, the Arizona legislature moved to repeal the 1864 law, and a 15-week ban on abortions was put into effect. This was approved by the legislature in 2022 and signed by former Governor Doug Ducey.

The battle over abortion rights in Arizona continued, with Democratic state legislators and abortion rights advocates working to protect access to abortion and enshrine it in the state constitution. In May 2024, Democratic Gov. Katie Hobbs signed a bill repealing the 1864 abortion ban, declaring it as a step towards protecting reproductive health care in the state.

The impact on reproductive rights

The 1864 Arizona abortion law, which was reinstated in April 2024, has had a significant impact on reproductive rights in the state. The law, which was enacted before Arizona became a state, criminalized all abortions except when the pregnant person's life was in danger. This effectively made abortion illegal in almost all cases.

The impact of this law on reproductive rights was far-reaching and negative. Reproductive rights advocates argued that the law restricted access to abortion and endangered the health and lives of Arizonans, particularly those who could not afford to travel out of state for the procedure. The law also did not include any exceptions for cases of rape or incest, which further limited reproductive rights and options for pregnant people in Arizona.

The law also had legal implications, as doctors faced potential prison sentences and license revocation for performing abortions, leading to confusion and an uncertain legal landscape. This resulted in many abortion clinics providing intermittent services or shutting their doors altogether. The law also impacted political campaigns, with Democratic campaigns focusing on the issue and aiming to enshrine the right to abortion in the state constitution.

In response to the law, Arizona's Democratic Governor, Katie Hobbs, urged the state legislature to repeal it and worked to protect access to abortion. Hobbs signed a bill repealing the 1864 law in May 2024, restoring abortion access with certain restrictions, such as a 15-week limit. This new legal framework allows abortions until fetal viability, typically around 24 weeks, and includes exceptions for cases where the pregnant person's physical or mental health is at risk.

The political response

Support for the Law

Anti-abortion groups, such as the Center for Arizona Policy, welcomed the reinstatement of the 1864 law, arguing that the court ruled with an eye toward a neutral interpretation of the law, rather than partisan priorities. Cathi Herrod, president of the Center for Arizona Policy, stated that the ruling "upholds the right of life for all Arizonans."

House Speaker Ben Toma and Senate President Warren Petersen also supported the reinstatement of the 1864 law, filing an amicus brief in the case and arguing that lawmakers never intended to supersede the ban with the 15-week law passed in 2022.

Criticism of the Law

On the other hand, Arizona Attorney General Kris Mayes, a Democrat, called the ruling "unconscionable" and "an affront to freedom." Mayes argued that the court effectively struck down a more recent law and replaced it with one from 160 years ago, putting the health and lives of Arizonans at risk.

Democratic Governor Katie Hobbs also criticised the ruling, calling it a "dark day" for Arizona and vowing to continue fighting for abortion rights. Hobbs urged the Republican-led legislature to repeal the 1864 law, but this seems unlikely as Republicans hold a majority in both chambers.

Reproductive rights advocates have also spoken out against the law, arguing that it will result in uneven healthcare access for women and that it puts women's lives at risk. They have also pointed to the lack of exceptions for rape, incest, or health concerns, further endangering women's health and well-being.

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