Arizona Supreme Court Says 1864 Abortion Ban Is Enforceable

• April 12, 2024

A near-total ban on abortion dating back to an 1864 Arizona law is now enforceable in the state, the Arizona Supreme Court ruled April 9.

The law—which was codified in 1901 and recodified several more times, most recently as Ariz. Rev. Stat. § 13-3603—criminalizes abortion except to save the mother’s life. The statute was held unconstitutional after the Supreme Court's decision in Roe v. Wade, but never repealed. The state did enact another law post-Roe that largely restricted abortion after 15 weeks’ gestation, Ariz. Rev. Stat. § 36-2322.

Following the Court’s decision in Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215, 292 (2022), overturning a federal constitutional right to abortion, the state moved to set aside the permanent injunction against the 1864 law. Planned Parenthood Arizona, Inc. opposed the motion, arguing that the injunction should be modified to account for the intervening law prohibiting physicians from performing elective abortions after 15 weeks’ gestation.

The trial court rejected Planned Parenthood’s argument and instead found the 1864 law was enforceable. The appeals court reversed, holding the two statutes should be “harmonized” such that “physicians who perform abortions in compliance” with Section 36-2332 are not subject to prosecution under Section 13-3603.

But the state high court disagreed with that position, concluding that “§ 36-2322 does not create a right to, or otherwise provide independent statutory authority for, an abortion that repeals or restricts § 13-3603.”

Instead, the high court found the later law was predicated entirely on the existence of a federal constitutional right to an abortion since disclaimed by Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215, 292 (2022). “Absent the federal constitutional abortion right, and because § 36-2322 does not independently authorize abortion, there is no provision in federal or state law prohibiting § 13-3603’s operation,” the high court concluded.

In the high court’s view, the later-adopted statute merely restricted abortions to the extent possible so long as Roe prevented enforcement of the 1864 ban.

While holding that Section 13-3603 was enforceable, the high court paused its ruling for 14 calendar days to permit the trial court to consider additional state and federal constitutional challenges to the 1864 law.

Arizona Attorney General Kris Mayes decried the holding as "a stain on our state" and noted that, "by effectively striking down a law passed this century and replacing it with one from 160 years ago, the Court has risked the health and lives of Arizonans."

Planned Parenthood of Ariz., Inc. v. Mayes, No. CV-23-0005-PR (Ariz. Apr. 9, 2024).

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