Background

The law, which was codified in 1901 and again in 1913, was never repealed, but after the U.S. Supreme Court's decision in Roe v. Wade in 1973, the law had been put on hold.

Following the Supreme Court's overturning of Roe in the 2022 Dobbs v. Jackson decision, then-Arizona Attorney General Mark Brnovich (R) sued to have the injunction on the 19th century law lifted, putting the ban back into effect.

However, in 2022, then-Arizona Gov. Doug Ducey (R) signed into law a 15-week ban on abortions, and in late-2022, the Arizona Court of Appeals ruled that both abortion laws within the state needed to be "harmonized," adding that abortion would be legal through 15 weeks as the 2022 law superseded the 1864 law.

Justices with the Arizona Supreme Court first heard opening arguments in the case last December where abortion rights opponents claimed the 1864 law should be in effect while abortion advocates asked the court to affirm the 2022 law banning abortion after 15 weeks.

Arizona Supreme Court rules to enact 19th century abortion ban

In its 4-2 decision Tuesday, Arizona's Supreme Court ruled that the 1864 abortion ban "is now enforceable," making abortion a felony punishable by two to five years in prison for anyone who performs or helps a woman perform one. The law does make exceptions for medical emergencies, but it does not make exceptions for cases of rape or incest.

In the ruling, the court's majority said the 15-week ban "does not create a right to, or otherwise provide independent statutory authority for, an abortion that repeals or restricts" the 1864 law, "but rather is predicated entirely on the existence of a federal constitutional right to an abortion since disclaimed" by the Dobbs decision in 2022.

"Absent the federal constitutional abortion right, and because" the 15-week ban "does not independently authorize abortion, there is no provision in federal or state law prohibiting" the 1864 ban, the court's majority said.

The court added that it would put its decision in hold for 14 days and that it would send the case back to a lower court so the court could consider "additional constitutional challenges" that have yet to be cleared up.

"When this litigation was initiated in 1971, the plaintiffs asserted a number of state and federal constitutional challenges" to the 1864 law "in addition to those presented in Roe v. Wade, which was overruled by Dobbs," the court's majority wrote.

Reaction

Arizona Attorney General Kris Mayes (D) said the decision was "unconscionable and an affront to freedom."

"[T]he Court has risked the health and lives of Arizonans," Mayes 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."

Mayes added that she does not plan to enforce the law.

"Let me completely clear, as long as I am Attorney General, no woman or doctor will be prosecuted under this draconian law in this state," Mayes said in the statement.

According to Advisory Board's Gabriela Marmolejos and Julia Elder, the court's decision "threatens both the ability for patients to receive and clinicians to provide reproductive care. Neighboring states of Nevada, New Mexico, and California will likely see increases in out-of-state abortions as Arizonans seek reproductive care elsewhere."

Advisory Board's Kaci Plattenburg said the court's decision is "one more detriment in a string of decisions from the last few months that have negative consequences for patients and providers."

Plattenburg noted that "patient travel for women who live in Arizona and are seeking abortions will likely increase," while some patients "may seek reproductive care via telehealth and mail-order pharmacies where they can, but also outside of the state."

The ruling "also puts providers at risk of being charged with a felony punishable by prison time, severely limiting their ability to provide care to patients who need it," Plattenburg added. While Attorney General Mayes has said she won't enforce the ruling, "damage to the provider pipelines of clinicians practicing in Arizona may have already been done," Plattenburg said.

Planned Parenthood Arizona, the largest abortion provider in the state, said it intends to continue providing abortions until the court's decision is enforced.

Arizona voters will likely be able to vote on establishing abortion as a "fundamental right" this November, as Arizona for Abortion Access announced last week it had gathered enough signatures for a November 2024 ballot measure that would enshrine abortion rights in the state's constitution.

If voters approve the ballot measure, it would undo the 1864 law and bar the state from restricting abortion care in situations where the health or life of the mother is at risk after the point of viability, according to the treating healthcare professional. (Von Quednow et al., CNN, 4/9; Edelman/Tabet, NBC News, 4/9; Davis-Young, NPR, 4/9; Healy/Browning, New York Times, 4/9; Arizona Supreme Court ruling, accessed 4/10)

How has the Dobbs v. Jackson decision impacted healthcare almost two years later? From patient outcomes to legal risks, Advisory Board researchers review their initial predictions and the actual repercussions in six key areas, and outline the steps health leaders can take next.