Arizona’s attorney general says she won’t enforce a Civil War-era law criminalizing abortion, after the state’s top court ruled to reinstate it on April 9.
The law in question, introduced in 1864, requires a sentence of two to five years in prison for anyone aiding an abortion, except if the procedure is necessary to avert the death of the mother.
The pre-statehood law now supersedes a law signed by then-Republican Gov. Doug Ducey a few months before the U.S. Supreme Court declared that abortion was not a constitutional right, sending the issue back to the states. The 2022 Arizona law limits abortion to within the first 15 weeks of pregnancy, with exceptions for life-threatening medical emergencies, but not for cases of rape or incest.
Arizona Attorney General Kris Mayes denounced the ruling to reinstate the old law as “an affront to freedom.”
“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,” she said.
“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.”
In the April 9 ruling, the Arizona Supreme Court indicated that the 1864 ban can only be “prospectively enforced.” The justices also specified that this opinion would not be enforceable for 14 days.
Should the law nevertheless be enacted after its current 14-day stay, the power to enforce it would rest with Ms. Mayes, who was empowered last year to assume all duties over abortion-related prosecutions.
In an effort to “centralize” authority over intended abortion prosecutions in Arizona, Gov. Katie Hobbs signed an executive order in June 2023 that effectively diverted authority to prosecute abortion cases from Arizona’s 15 county attorneys to the attorney general. The Democrat governor said this was meant to make sure “differences in interpretation or application of the law by different county attorneys do not chill, deter, or restrict access to lawful abortion care.”
Ms. Mayes, who declared before her election in November 2023 that she would not prosecute anyone for having or aiding an abortion, is now affirming her commitment to not enforcing the revived abortion ban.
The Ruling
In the 4–2 ruling on April 9, Arizona’s highest court overturned a lower court’s opinion that the two abortion laws could be “harmonized” in a way that physicians might perform abortions up to 15 weeks while non-physicians who perform abortions could face felony charges.“We conclude that [the 2022 law] does not create a right to, or otherwise provide independent statutory authority for, an abortion that repeals or restricts [the 1864 ban], but rather is predicated entirely on the existence of a federal constitutional right to an abortion,” the Arizona Supreme Court wrote in its majority opinion.
“Absent the federal constitutional abortion right, and because [the 2022 law] does not independently authorize abortion, there is no provision in federal or state law prohibiting [the 1864 ban’s] operation.”
Ms. Hobbs responded to the latest ruling with disdain, calling it “a dark day in Arizona.”
“We are just fourteen days away from one of the most extreme abortion bans in the country,” she wrote on X. “But my message to Arizona women is this: I won’t rest, and I won’t stop fighting until we have secured the right to abortion. That is my promise to you.”
Pro-life activists celebrated the court’s ruling as a victory for their cause.
“Life is a human right, and today’s decision allows the state to respect that right and fully protect life again—just as the Legislature intended,” said Jake Warner, senior counsel at Alliance Defending Freedom, who argued the case before the court.
“Life begins at conception. At just six weeks, unborn babies’ hearts begin to beat. At eight weeks, they have fingers and toes. And at 10 weeks, their unique fingerprints begin to form.
“Arizona’s pro-life law has protected unborn children for over 100 years, and the people of Arizona, through their elected representatives, have repeatedly affirmed that law, including as recently as 2022. We celebrate the Arizona Supreme Court’s decision that allows the state’s pro-life law to again protect the lives of countless, innocent unborn children.”
