Arizona Supreme Court determines abortion law from 1864 is enforceable News
Janni Rye, CC0, via Wikimedia Commons
Arizona Supreme Court determines abortion law from 1864 is enforceable

Arizona’s Supreme Court found on Tuesday that a 159-year-old law banning abortion is enforceable following the US Supreme Court’s 2022 decision to overturn abortion rights case Roe v Wade, sending a 52-year-old case back to trial court.

The case, Planned Parenthood v. Kristin Mayes/Hazelrigg, was initiated in 1971, two years before the US Supreme Court determined abortion access was a constitutional right in Roe v. Wade.

The focus is on a law from 1864, established shortly after Arizona was designated as a US territory by the Senate and decades before it attained statehood. This law was part of the Howell Code, a comprehensive set of laws enacted by the territory’s First Legislative Assembly, encompassing procedural regulations and establishing criminal laws ranging from bigamy to duels to mayhem.

That code stated, in relevant part:

Every person who shall administer or cause to be administered or taken, any medicinal substances, or shall use or cause to be used any instruments whatever, with the intention to procure the miscarriage of any woman then being with child, and shall be thereof duly convicted, shall be punished by imprisonment in the Territorial prison for a term not less than two years nor more than five years.

The 1864 version provided an exception if a physician were to perform an abortion in order to save the mother’s life. The following year, the provision was amended slightly to stipulate that the life-saving exception could apply to anyone performing an abortion. The regulation has remained largely unchanged since 1865, and the near-total abortion ban was codified into Arizona state law in the early 20th century.

In 1971, the Tucson branch of reproductive rights organization Planned Parenthood challenged the constitutionality of the statute. Though Planned Parenthood initially lost, the case was revived after the passage of Roe v. Wade, at which point the state statute was deemed unconstitutional and enforcement of it was enjoined. But despite the injunction, Arizona lawmakers never repealed the law, so it remained on the books.

Given the injunction, and in line with Roe, Arizona’s abortion policy evolved. At present, the state authorizes abortions up to 15 weeks of gestation.

The 2022 ruling Dobbs v. Jackson Women’s Health Organization overturned the reproductive rights established by Roe. In Dobbs, the US Supreme Court ruled that abortion was not a constitutional right but a state-level issue, laying the foundation for states to ban abortion entirely or at specific gestational milestones. Since then, reproductive rights have become increasingly fragmented, with two states authorizing abortion at any gestational stage, and 15 imposing near-total bans, according to evolving policy research by the Guttmacher Institute.

Shortly thereafter, a series of court cases grappled with whether Arizona’s abortion statute had been revived by Dobbs, leading obstetrician Eric Hazelrigg to intervene in the decades-old case for clarification, representing unborn fetuses in doing so.

In its decision on Tuesday, Arizona’s Supreme Court focused on the legislature’s inaction with respect to repealing the abortion ban during the Roe era:

The legislature has demonstrated its consistent design to restrict elective abortion to the degree permitted by the Supremacy Clause and an unwavering intent since 1864 to proscribe elective abortions absent a federal constitutional right … 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.

Reproductive rights advocates lamented the decision. Pima County Attorney Laura Conover, a party to the case, said in a statement shortly after the ruling:

This decision will result in a legal chilling effect on Arizonans who wish to obtain abortion services regardless of the circumstances that lead to their decision, and for those in the medical community who might provide them. The result of this will ultimately cause an increase in unsafe abortions and threaten the liberties of those involved because the criminalization of abortions will not end the need or desire of those who seek services.

Aadika Singh, a reproductive justice attorney with the Public Rights Project, who represented Conover in the case, said, “The Arizona Supreme Court allowed an extreme criminal abortion ban to take Arizona back in time 150 years.”

Courts and abortion-rights advocates across the country remain preoccupied with a new legal framework in the aftermath of Dobbs. Last week, an Indina Court of Appeal upheld an injunction blocking the state’s near-total abortion ban. Florida’s Supreme Court also upheld that state’s six-week abortion ban and authorized a referendum on enshrining a right to abortion in the state’s constitution. In late March, the US Supreme Court heard oral arguments in a challenge to the abortion pill Mifepristone’s availability.

JURIST Deputy Editorial Director William Hibbitts contributed to this report.