Virtually all abortions are now criminalized in Arizona after a judge reinstated an 1864 ban
Anti-abortion Protesters (Shutterstock)

A near-total ban on abortion in Arizona that was written in 1864 but has been blocked since 1973 can now be enforced, a Pima County judge ruled late Friday afternoon, criminalizing almost every abortion in the Grand Canyon State.

In August, Attorney General Mark Brnovich asked the court to lift an injunction stopping enforcement of the territorial-era ban, which was implemented after the U.S. Supreme Court ruled that women have a constitutional right to abortion services in Roe v. Wade. But those rights were reversed in June, when the high court overturned Roe.

On Friday afternoon, Judge Kellie Johnson sided with the state and said the law, which had been reauthorized by Arizona’s legislature in 1901 and again in 1977, can no longer be blocked. It outlaws all abortions except when the woman’s life is in danger, though it’s unclear exactly what that means. It contains no exceptions for pregnancies arising from rape or incest.

Health care providers who violate the law face between two and five years in prison. The ban was first enacted in 1864, a year after Arizona became a territory and nearly 50 years before Arizona became a state in 1912.

Planned Parenthood of Arizona had asked the court to rule that legislation passed since Roe regulating abortion should take precedence, including a 15-week abortion ban signed by Gov. Doug Ducey earlier this year. That law was set to take effect this Saturday, and Ducey had said he believed it ought to override the Civil War-era ban.

But Johnson concluded that Arizona lawmakers — the legislature has been controlled by Republicans for decades — had consistently said that abortion regulations were never intended to grant a right to abortion in the state, and even the 15-week ban passed this year specifically said it was not intended to supersede the 1864 abortion ban if Roe was overturned.

Anti-abortion advocates celebrated the win. Cathi Herrod, president of the Center for Arizona Policy, a Christian lobbying group that advocates against abortion access, called it a signal to shift towards providing women resources for dealing with unplanned pregnancies. She called the ruling a triumph for the right to life.

“Abortion ends one life and puts the woman at risk of physical and emotional harm. Arizona’s abortion law effectively affirms that life is a human right and should not be sacrificed unless the mother’s life is at risk,” she said in a written statement.

Brnovich hailed the decision on Twitter, praising it for its protection of unborn children in the state.

“We applaud the court for upholding the will of the legislature and providing clarity and uniformity on this important issue. I have and will continue to protect the most vulnerable Arizonans,” he tweeted.

Planned Parenthood of Arizona, which oversees four of the nine clinics in the state that provide abortion services, said that Johnson’s decision flouted dozens of more recent laws which clearly allowed abortion in the state. Brittany Fonteno, the organization’s president and CEO, promised to continue fighting for access in Arizona and criticized the total ban as dated and out of touch with current public sentiment.

“Today’s ruling by the Pima county superior court has the practical and deplorable result of sending Arizonans back nearly 150 years. No archaic law should dictate our reproductive freedom and how we live our lives today. We know that today’s ruling does not reflect the will of the people, as Arizonans are overwhelmingly in favor of abortion access,” Fonteno said in an emailed statement.

A poll from earlier this year found that as much as 90% of Arizonans agreed that family planning should be a choice free from political interference, and as much as 80% were against laws that threatened fines or jail time for doctors providing care that patients requested.

Planned Parenthood of Arizona added that outlawing abortion would not reduce the need for the procedure, just force women to leave the state and deepen racial and economic inequalities. In the past decade, resident abortions in the state have steadily hovered around 13,000 per year.

Democratic gubernatorial candidate Katie Hobbs, who has previously called the abortion ban “draconian” and vowed to use her veto power to reject future legislation restricting abortion if she were elected, said in a statement that the ruling would put women across the state in danger by forcing doctors to reconsider potentially life-saving care.

“Medical professionals will now be forced to think twice and call their lawyer before providing patients with oftentimes necessary, lifesaving care. When politicians think they know better and don’t allow doctors to do their jobs, patients suffer,” she said.

Hobbs’ opponent, Republican Kari Lake, has has called abortion the “execution” of babies and said she would enforce the territorial ban.

In an emailed statement, EMILY’s List, a pro-abortion organization which works to help fund the campaigns of women for political offices, lamented the decision, and called for electing pro-choice Democrats in the upcoming midterms.

“This ruling is a tragic and timely reminder of the importance of electing Democratic pro-choice women up and down the ballot in Arizona…We know that these pro-choice champions will not give up even in the face of dangerous abortion bans like this one, and EMILY’s List will continue supporting them on their path to office,” read the statement.

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