Arizona's 1864 law banning nearly all abortions is in effect, judge rules

An Arizona law that bans abortions in nearly all circumstances can again be enforced after a Pima County judge lifted an injunction that had left the pre-statehood law dormant for nearly five decades.

That decision Friday was immediately praised by abortion foes and lamented by abortion rights advocates — and it stands to be a potentially galvanizing force just ahead of November's midterm elections.

Republican state Attorney General Mark Brnovich asked the court to rule on the injunction after the U.S. Supreme Court in June overturned Roe v. Wade, a 1973 decision that legalized abortion across the country.

The court's decision earlier this year, in the Mississippi case called Dobbs v. Jackson Women's Health Organization, put the question of abortion policy back in the hands of states.

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Arizona had conflicting laws on the books, leading to the court challenge and confusion among abortion providers about what was legal.

The Friday ruling by Pima County Superior Court Judge Kellie Johnson provides clarity in allowing enforcement of the old law, which bans abortions in all cases except when necessary to save the pregnant person's life.

But abortion rights advocates are likely to appeal, meaning the state of abortion law in Arizona is still far from settled. Providers expressed shock, outrage and enduring confusion over the ruling, which came a day before another abortion law was set to go into effect.

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“Today’s ruling by the Pima County Superior Court has the practical and deplorable result of sending Arizonans back nearly 150 years," Brittany Fonteno, president and CEO of Planned Parenthood Arizona, said in a statement. "No archaic law should dictate our reproductive freedom and how we live our lives today."

The basic provisions of the law were first codified by the first territorial Legislature of Arizona in 1864: It mandates two to five years in prison for anyone who provides an abortion or the means for an abortion. The state adopted the law with streamlined language in 1901; it remains on the books today as ARS 13-3603.

"We applaud the court for upholding the will of the legislature and providing clarity and uniformity on this important issue," Brnovich said in a statement Friday. "I have and will continue to protect the most vulnerable Arizonans."

History of law and the injunction case

The 1864 law was in effect for much of Arizona's history, and numerous doctors and amateur abortionists went to prison after convictions for violating it.

A companion law also adopted in the 19th century said a woman could face at least one year in prison for obtaining an abortion. That was repealed only last year, though it's unclear if any woman served time for it. Congress granted statehood to Arizona in 1912.

A Phoenix chiropractor was appealing his prison sentence in 1973 for performing an abortion when the Roe decision made abortion legal nationwide.

The same year, a Pima County Superior Court judge granted the injunction to Planned Parenthood Arizona (then known as Planned Parenthood of Tucson) weeks before the Roe decision, based on the concept that Arizona's right-to-privacy provision did not permit the state to outlaw abortion.

The state Court of Appeals overruled the lower court but had no choice but to reimplement the injunction once Roe was decided.

Brnovich, saying he wanted to provide "clarity and uniformity" to state abortion law, moved to lift the injunction in July.

Planned Parenthood argued in an Aug. 19 hearing before Johnson that dozens of abortion-related laws enacted in Arizona over the years since 1973 essentially create a right to abortion. Licensed physicians should be able to continue providing abortions once all of the laws are "harmonized," and the pre-statehood law could still apply for unlicensed abortion providers, attorneys said.

The state's lawyers maintained that those laws were passed only because of the limitations set by Roe v. Wade, and that the pre-statehood law should once again be the law of the land now that Roe's no longer in effect.

Johnson, whom Republican Gov. Doug Ducey appointed to the bench in Pima County in 2017, ultimately sided with the state.

Political consequences of ruling

The ruling almost immediately escalated the political impact of the Dobbs decision, which had prompted protests at the state Capitol in June.

Reinstating Arizona's Civil War-era law gives new fuel to Democrats, who have emphasized Republicans' preference to restrict abortion or ban it entirely.

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Arizona Democratic Party Chair Raquel Terán sent a message to Arizonans "continually horrified by the actions of dangerous, out-of-touch Republicans in the war against our bodies" that "we will protect mothers, families, doctors, and medical professionals because no one should be thrown in jail for providing or receiving essential medical care.”

The party sent a fundraising email, too, for its effort to defeat "AZ GOP extremists in November."

Democratic candidate for Arizona governor Katie Hobbs quickly condemned the ruling, while her Republican opponent, Kari Lake, remained silent.

"This cruel law effectively outlaws abortion in Arizona — with no exceptions for rape or incest — and risks women’s fundamental freedom to make their own health care decisions," Hobbs said in a statement. "I am terrified of the severe, life-threatening impacts this law will have on Arizonans, and I know many Arizonans feel this fear today, too."

This year, Ducey approved a law that outraged abortion-rights advocates nearly as much as the pre-statehood law. It orders felony charges against doctors who perform abortions on patients who are more than 15 weeks pregnant and contains only limited exceptions for medical emergencies. Women who obtain an abortion would be immune from prosecution.

The new law also contains a provision stating it doesn't repeal the 1864 law or any other abortion ban. The anti-abortion Center for Arizona Policy said the territorial law takes precedence now, although abortion advocates warned the dueling laws would further confuse providers and families.

Cathi Herrod, president of the Center for Arizona Policy, said in response to the ruling, "Arizona can and will care for both mother and her unborn child."

"Most abortions are now illegal in Arizona, shifting the focus to caring for women facing unplanned pregnancies," she said in a statement. "Judge Kellie Johnson’s ruling today upholding the law that was in effect in 1973 when Roe v. Wade was wrongly decided will protect unborn babies and their mothers. And nearly 50 pregnancy resource centers throughout the state stand ready to ensure no woman stands alone."

This article originally appeared on Arizona Republic: Arizona ban on nearly all abortions in effect, judge rules