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Arizona’s highest court on Tuesday upheld an 1864 law that bans nearly all abortions, a decision that could have far-reaching consequences for women’s health care and election-year politics in a critical battleground state.
The Arizona Supreme Court said that because the federal right to abortion in Roe v. Wade had been overturned, there was no federal or state law preventing Arizona from enforcing a near-total ban on abortions that had sat dormant for decades.
The 1864 law, the court said in a 4-2 decision, “is now enforceable.” But the court also put its ruling on hold for the moment, and sent the case back to a lower court to hear additional arguments.
The ruling was focused on a law on the books long before Arizona achieved statehood. It outlaws abortion from the moment of conception, except when necessary to save the life of the mother, and it makes no exceptions for rape or incest. Doctors prosecuted under the law could face fines and two to five years in prison.
The court’s ruling was a stinging loss for abortion-rights supporters, who said it would put women’s health at risk.
Attorney General Kris Mayes, a Democrat, called it “unconscionable and an affront to freedom.”
“The Court has risked the health and lives of Arizonans,” she said in a statement. “Today’s decision to reimpose a law from a time when Arizona wasn’t a state, the Civil War was raging, and women couldn’t even vote will go down in history as a stain on our state.”
Even some Republicans expressed misgivings about the reinstatement of the near-total ban, and had supported retaining the state’s 15-week abortion ban, which was signed into law in 2022 by the previous governor, Doug Ducey, a Republican.
The stakes could be significant for Arizona after former President Donald J. Trump said this week that he thought abortion rights should be left up to the states to decide.
Democrats, who seized on abortion to win campaigns for governor and attorney general in midterm elections two years ago, condemned the ruling and said it would galvanize their supporters to push for a state constitutional right to abortion as a ballot initiative in this November’s elections.
For nearly two years, supporters and opponents of abortion rights in Arizona have been fighting in court over whether the 1864 law could still be enforced, or whether it had been effectively overtaken and neutered by decades of other state laws that regulate and restrict abortion but stop short of banning it entirely.
The 1864 ban had sat mothballed for decades, one of several sweeping state abortion-ban laws that were moribund while Roe v. Wade was in effect but became the focus of intense political and legal action after Roe fell.
Abortions in Wisconsin were largely halted because of an 1849 ban, but resumed last September after a judge said the law did not make abortions illegal. In Michigan, Gov. Gretchen Whitmer, a Democrat, signed a repeal of a 1931 ban on abortion last spring after voters added abortion-rights protections to the state constitution.
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