Photo Courtesy Arizona Supreme Court: On Tuesday, the Arizona Supreme Court upheld an 1864 ban on abortion.
The statewide ban had been blocked while Roe was the law of the land. It will prohibit abortion except to save the life of the pregnant person.
By Shefali Luthra, Grace Panetta, Jessica Kutz/The 19th
PHOENIX – Abortion will be almost completely illegal in Arizona following a ruling issued Tuesday by the state’s Supreme Court that upholds a ban passed in 1864.
The law, passed decades before Arizona became a state, was never repealed, though it was blocked after the U.S. Supreme Court issued its decision in Roe v. Wade in 1973. Since then, the law was only temporarily enforced in the fall of 2022, after the U.S. Supreme Court overturned Roe in Dobbs v. Jackson Women’s Health Organization. The ban has a very limited exception to save the life of the pregnant person, a carveout physicians say is incredibly difficult to use in practice.
“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,” Justice John R. Lopez wrote in the court’s opinion.
That interpretation, he continued, is that “Roe’s recognition of a right to an abortion was not absolute, and many states — including Arizona — legislatively restricted the time, place, and manner in which an abortion could be performed. … Arizona has never independently created a statutory right to abortion.”
Today’s decision will not take effect right away. The court’s majority extended a stay against the 1864 law for 14 days and remanded the case to a lower state court in case it wishes to consider other constitutional arguments made by Planned Parenthood, which had filed the current suit challenging the law.
“I’m devastated by this decision, and I know many Arizonans are as well and trying to figure out what this means,” Democratic Gov. Katie Hobbs said during a Tuesday press conference following the ruling. “We know that IVF is under attack. We know that contraception is under attack.”
During a press conference shortly after the ruling, Angela Florez, CEO of Planned Parenthood Arizona, the state’s largest abortion provider, told reporters that she anticipates the organization will continue providing abortions for almost two months — the point at which they believe the decision would be enforced.
Though the organization has the ability to raise other constitutional arguments in the lower Arizona court, Planned Parenthood representatives did not immediately articulate what other challenges they could raise.
Only six of the Arizona court’s seven justices weighed in on the case. The seventh, conservative justice Bill Montgomery, recused himself after reporting by The 19th highlighted his previous comments on abortion, and in particular about Planned Parenthood, one of the parties in the lawsuit.
The ruling means abortion will be almost completely outlawed in 15 states. In two more, South Carolina and Georgia, six-week bans are currently in effect, and another such law will go into effect in Florida on May 1.
The near-total ban represents a massive loss of abortion rights in Arizona. Previously, the procedure had been available up until 15 weeks of pregnancy — a cutoff still earlier than what is legal in the majority of states, but after the point at which most abortions occur.”
Anti-abortion groups including Susan B. Anthony Pro-Life America and Students for Life celebrated Tuesday’s ruling. The Alliance Defending Freedom, the conservative legal organization that has led many anti-abortion lawsuits, called the decision “a significant ruling that will protect the lives of countless, innocent unborn children.”
Already, patients have asked if their abortion appointments must be canceled because of the new law, said Dr. Jill Gibson, medical director of Planned Parenthood Arizona and a practicing OB/GYN. “It’s an untenable situation and extremely unfortunate.”
Once the ban takes effect, the closest options for Arizonans seeking abortions will be clinics in New Mexico, southern California, and Nevada. The decision will also likely put more pressure on organizations like the Arizona Abortion Fund, a largely volunteer-staffed organization that helps people cover the cost of abortions. Close to 14,000 abortions took place in Arizona in 2021, and about 11,500 did in 2022, according to the state health department. Those numbers appear to have held steady: The most recent estimates from the Society for Family Planning found that in the first nine months of 2023, 10,010 abortions took place in the state.
“It’s going to be devastating, and as an organization, we don’t have the financial resources to fund [that many] people going out of state,” said Eloisa Lopez, the fund’s executive director.
Arizona’s attorney general, Democrat Kris Mayes, has said she would not prosecute medical providers for performing abortions. And Hobbs, the state’s governor, issued an executive order last June giving the attorney general authority over abortion-related prosecutions. Neither Hobbs nor Mayes is up for re-election until 2026. It is not clear whether the law’s language could also be used to prosecute Arizonans who support pregnant people in leaving the state for an abortion. Lopez said that her organization will continue to fund travel until advised otherwise.
Mayes reiterated that commitment on Tuesday, posting on X, the platform formerly known as Twitter, “As long as I am Attorney General, no woman or doctor will ever be prosecuted under this draconian law in our state.”
When asked in a news conference whether she was worried about legal challenges to the executive order, Hobbs said: “I say, bring it on. I would not have issued the executive order if I did not think it was legally sound.”
