Arizona Supreme Court Upholds Abortion Law From 1864

Welcome to the NewsHour, Arizona will soon be the latest state with a near total abortion ban after that state’s Supreme Court revived a 160-year-old law. The law provides no exceptions for rape or incest. And in its 4-2 opinion the conservative majority wrote, “Physicians are now on notice that all abortions except those necessary to save a woman’s life are illegal.”

Doctors who perform abortions could face criminal prosecution and prison time, though the Democratic Attorney General says she will not prosecute. It’s the latest test of the limits on abortion since the Supreme Court ended federal abortion protections from the decades-old Roe v. Wade decision. And in this election year, there’s already an effort under way to get a pro-abortion rights amendment on Arizona’s ballot in November. Arizona’s Democratic Governor Katie Hobbs responded to today’s court decision.

Arizona’s 2022 abortion ban is extreme and hurts women. And the near total Civil War era ban that continues to hang over our heads only serves to create more chaos for women and doctors in our state. As governor, I promised I would do everything in my power to protect our reproductive freedoms.

Carter Sherman covers reproductive health for the Guardian and joins us now. Thanks so much for being with us.

Thank you for having me.

So the Arizona State Supreme Court lifted a stay on this 1864 law that was passed before Arizona was a state. Help us understand how they arrived at this decision.

So this ban has been the source of court battles and chaos since the overturning of Roe almost two years ago. What happened is after a very long period of litigation, the Supreme Court of Arizona decided today that since there is no more Roe v. Wade, there is no reason why this 1864 ban should not go into effect. Now, what’s unclear at this point is when exactly that ban will fully take effect and be enforceable in the words of the court. Abortion providers and their supporters are at this time really trying to figure out what this decision means for all the people on the ground in Arizona.

How is it that this Civil War era law supersedes the previous law that the legislature passed and the previous governor signed in 2022 that made abortion accessible up to 15 weeks?

When the US Supreme Court legalized abortion nationwide in Roe v. Wade in 1973, that meant that there were several laws across the country that dated back decades that were no longer going to be in effect. And many of these laws were never really truly dealt with. They just went dormant. And so when the US Supreme Court overturned Roe in 2022, suddenly all of these states, including Arizona, had to deal with these so-called zombie laws that they had not ever really fully reckoned with. Arizona had also in 2022, passed a separate 15-week abortion ban, but what happened was that 15 week abortion ban and this near total abortion ban from 1864 just sort of coexisted and they weren’t really harmonized in any kind of way. In this case in particular, Planned Parenthood has argued that these laws needed to be harmonized, and that’s why that the 15-week ban should be allowed to stand over the 1864 ban. That’s not the argument that the Arizona Supreme Court accepted today.

Well, in the meantime, Arizona’s Attorney General Kris Mayes says she will not prosecute any doctor who performs abortion procedures. Mayes says that this is a collective effort with the state’s governor. How is that being received by county prosecutors who could potentially use their own discretion?

I think that there are many, many questions about what it really means for an official like Mayes to say that she will try to hold off at any kind of prosecutions of abortion providers. The providers that I’ve talked to and have heard from don’t necessarily feel like they are totally in the clear at this point, and they are confused about what it means moving forward if they were to provide abortions.

What’s the expected impact on women’s healthcare in Arizona and in the surrounding region?

Arizona has been a critical release valve for places like Texas, which have a total abortion ban on the books right now. So if we ban abortion totally, or almost totally in Arizona, there’s going to be plenty of people throughout the Southwest who previously might’ve fled to Arizona for abortions who will now have to travel even farther out. Abortion rights supporters also say that this could have massive impacts on things like maternal mortality, so there’s going to be really wide-ranging effects really across the region in a variety of health areas.

And there’s also the political impact. Arizona, as you well know, is among a handful of key battleground states. An effort is already underway right now to put a measure on the 2024 ballot that would enshrine abortion rights in the state constitution. How might this affect not just the presidential election, but that key Senate race, that hotly contested Senate race in Arizona?

I think that this decision today is going to make Arizona one of the biggest battlefields, particularly in abortion, but also in the presidential race, also in the Senate race in the 2024 elections. What we’re looking at here is a potentially very galvanized population outraged by the overturning of Roe, outraged by a near total abortion ban, and those people might decide to go to the polls en masse and vote not just for abortion rights, but also for Democrats. There’s actually been, since the decision came out today, many Republicans in the state saying, “This was a bad idea. I don’t support this decision.” And some of them have said that they will work to try to figure out a way back to this 15-week abortion limit and not the near total abortion ban. I’ve covered this issue for many years. I’ve covered it long before Roe was overturned, and I have never really seen this sort of immediate 180 from Republicans in this way on this issue.

That is Carter Sherman with The Guardian. Thanks so much for sharing your reporting and your insights with us.

Thank you for having me.