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Arizona High Court’s 1864 abortion ban ruling likely to face ballot issue


PHOENIX (BP) – The revival of an 1864 Arizona law criminalizing abortions for providers, expectant mothers and advertisers will likely face a November state ballot measure asking voters to enshrine abortion rights in Arizona’s constitution.

The Arizona Supreme Court voted 4-2 April 9 to allow the enforcement of the laws originally cited as Arizona State Statutes 13-211, 13-212, and 13-213, but stayed their enforcement while the lower court considers certain constitutional challenges voiced by appellant Planned Parenthood. The state statutes were later renumbered 13-3603, 13-3604, and 13-3605, according to the Arizona Public Health Association.

Still, Arizona is one of several states where efforts are underway to place constitutional amendments on the November ballot to enshrine abortion rights in state constitutions. Arizona for Abortion Access, a coalition spearheading the effort for the ballot measure in Arizona, as early as April 2 had already surpassed by 120,000 the number of signatures needed to place the measure on the ballot, NBC News reported.

The group had gathered 506,892 signatures surpassing the 383,923 needed, it told NBC News, and planned to continue gathering signatures until the July 3 deadline.

As originally passed in 1864, Arizona law criminalized abortions for providers, but was amended in 1901 to also criminalize abortions for “women who solicit assistance to procure an abortion,” the state’s high court wrote in its decision. The only stated exception is to save the life of the expectant mother.

The state laws allow prison terms of two to five years for those who perform abortions or prescribe medical abortions, one to five years for women who get abortions, and a misdemeanor offense for anyone “who wilfully writes, composes or publishes a notice or advertisement of any medicine or means for producing or facilitating a miscarriage or abortion, or for prevention of conception, or who offers his services by a notice, advertisement or otherwise, to assist in the accomplishment of any such purposes.”

The ruling drew varying remarks from pro-life supporters, with some indicating the state legislature should clarify the law. Before the court ruling, Arizona allowed abortions until the 15th week of pregnancy, a cut-off some Arizona pro-life advocates continue to support. Arizona Attorney Gen. Kris Mayes, a Democrat, has said she will not enforce the 1864 law.

Several pro-life advocates criticized the particulars of the ruling, but Alliance Defending Freedom senior counsel and pro-life advocate Jake Warner said at a press conference he believes prosecutors have the authority “to enforce the law as written, and so protect unborn life here in Arizona.”

Kari Lake, an Arizona Republican running for U.S. Senate, has described herself as pro-life but opposed the court’s ruling.

“I oppose today’s ruling, and I am calling on (Gov.) Katie Hobbs and the State Legislature to come up with an immediate commonsense solution that Arizonans can support,” Lake said in response to the ruling. “Ultimately, Arizona voters will make the decision on the ballot come November.”

The reversal of Roe v. Wade cleared a path for the matter to be brought before the state court. With Roe v. Wade, the state laws were considered unconstitutional, but the Arizona Legislature never repealed the laws. When Roe v. Wade was reversed, Arizona then-Attorney Gen. Mark Brnovich, who served until 2023, asked the court to set aside the permanent injunction imposed in 1973 against the law criminalizing abortion (ARS 13-3603). The trial court granted Arizona’s request, but the state appeals court reversed the ruling in an appeal by Planned Parenthood. The appellants argued that Arizona’s 15-week abortion ban, ARS 36-2322, effectively overturned the 1864 law. The state Supreme Court disagreed.

“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 – precisely what it intended and accomplished in § 36-2322,” the court wrote in its ruling. “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.

“We affirm the trial court’s judgment vacating the injunction of § 13-3603, vacate the court of appeals’ opinion and stay of enforcement of § 13-3603, and remand to the trial court for potential consideration of the remaining constitutional challenges to § 13-3603 alleged in Planned Parenthood’s complaint for declaratory relief.”

But the court said the matter ultimately should be resolved through legislation or a constitutional amendment.

Justice Bill Montgomery recused himself from the case because of social media posts he wrote accusing Planned Parenthood of participating in “the greatest generational genocide known to man,” the New York Times reported.