The future of abortion rights in Arizona is now in the hands of the state Supreme Court, which heard arguments Tuesday over whether a Civil War-era law banning almost all abortions supersedes current law.
The case is not about whether there is a right to an abortion in the state, but rather how the court should interpret conflicting statutes.
Currently, abortion is banned in Arizona after 15 weeks under a law signed by then-Gov. Doug Ducey (R) in 2022 and enforced after the U.S. Supreme Court overturned Roe v. Wade. The law contains exceptions for medical emergencies, but not for rape or incest.
But a separate law that’s been on the books since 1864—before Arizona was even a state and when it was still a territory—bans abortions in almost every circumstance. The law makes abortion a felony punishable by two to five years in prison for anyone who performs or helps a woman obtain one. It includes a narrow exception to save a woman’s life.
If that law is upheld, Arizona will have one of the strictest abortion bans in the country.
Tuesday’s hearing in Arizona occurred just one day after the Texas Supreme Court ruled in support of that state’s near-total abortion ban, saying a pregnant woman carrying a fetus with a fatal genetic anomaly did not qualify for a medical exception.
Abortion rights advocates said if the 1864 law in Arizona takes effect, it will be even stricter than Texas’s.
During oral arguments Tuesday, justices focused questions for both sides about legislative intent, and the fact that the 159-year-old law was never repealed.
When Roe v. Wade was passed in 1973, it overrode the 1864 law, but the near-total ban remained on the books in Arizona.
After Roe was overturned last year, abortion providers in the state didn’t know which law to follow. Some counties enforced the 1864 ban, while others enforced the 15-week ban.
The Arizona Court of Appeals last December decided to “harmonize” the laws, and said the 1864 ban should apply to individuals, but physicians could follow the newer law and provide abortions up to 15 weeks.
Arizona’s Democratic Attorney General Kris Mayes said she wouldn’t pursue the case, but Eric Hazelrigg, medical director of a chain of Phoenix-area anti-abortion clinics, was allowed to step in as an “intervenor” along with Yavapai County Attorney Dennis McGrane and appeal to the state Supreme Court.
The intervenors are represented by the Alliance Defending Freedom (ADF), a Christian conservative legal group that aims to end abortion. They argued the 1864 ban should remain in effect because it was never repealed.
Jake Warner, an attorney for ADF, argued that both abortion laws “fit together” because the pre-statehood ban contains an exception for saving the life of the mother.
On the other side was Planned Parenthood Arizona, which argued that the landscape is too confusing, and the 1864 law was overruled by the 2022 law.
Pima County Attorney Laura Conover, who argued for the plaintiffs, said the questions from the justices left her feeling cautiously optimistic, because they seemed to recognize the confusing situation.
“As Southern Arizona’s prosecutor, confusion is not acceptable. The law is supposed to be clear. Providers and patients need to know what is prohibited and what is legal,” Conover said in an interview.
“We’ve been in a state of chaos on and off for a year and a half now … so I think we are position of asking for clarity and asking that the court recognize that going back to 1864 territorial days’ near-total ban simply doesn’t make rational or legal sense.”
All seven justice on Arizona’s Supreme Court were appointed by a Republican governor, but only six justices will rule on the case.
Justice Bill Montgomery recused himself because he previously accused Planned Parenthood of practicing “generational genocide.”
There’s no timeline for when a decision will occur, but it may not last for long. Abortion rights advocates are working to get a constitutional amendment on the November 2024 ballot that would create a “fundamental right” to an abortion up until fetal viability.
