The Arizona Supreme Court ruled Tuesday that most abortions will be illegal in the state, finding a 1901 territorial law can go back into effect in light of the overturning of Roe v. Wade.
In a 4-2 decision, the justices determined a bill signed into law in March 2022 (§ 36-2322) setting a 15-week limit on abortions did not take precedence over the older territorial law (§ 13-3603), recodified in 1913 after Arizona became a state.
Under the 1901 law, abortions are only permitted to save the life of the mother.
“We conclude that § 36-2322 … is predicated entirely on the existence of a federal constitutional right to an abortion since disclaimed by Dobbs v. Jackson Women’s Health Organization,” the Supreme Court wrote.
“Accordingly, § 13-3603 is now enforceable.”
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When then-Gov. Doug Ducey signed 36-2322 in March 2022, he stated that it would not override the older law, KNXV-TV reported.
In December 2022, the Arizona Court of Appeals upheld the 15-week limit.
However, following the U.S. Supreme Court’s Dobbs decision overturning Roe v. Wade in June 2022, then-Attorney General Mark Brnovich reached the same conclusion the Arizona Supreme Court did on Tuesday.
“Our office has concluded the Arizona Legislature has made its intention clear regarding abortion laws,” Brnovich said. “13-3603 is back in effect” and was not repealed by the newer law, he announced.
Our office has concluded the Arizona Legislature has made its intentions clear regarding abortion laws. pic.twitter.com/jvjKXaXKwd
— Mark Brnovich (@GeneralBrnovich) June 29, 2022
The law carries a prison sentence of up to five years for abortionists, but does not penalize those seeking an abortion, according to KNXV.
Democratic Gov. Katie Hobbs condemned the state Supreme Court’s ruling, saying that it was “a dark day in Arizona.”
Arizona Republican U.S. Senate candidate Kari Lake said in a statement that she also opposes the ruling and called on Hobbs and the Republican-controlled state Legislature to come up with “an immediate common sense solution that Arizonans can support.”
The group Arizona for Abortion Access announced last week that it had gathered enough signatures to put the legality of abortion on the November ballot in a proposed amendment.
Groups behind the ballot initiative include the American Civil Liberties Union of Arizona, Arizona List and Planned Parenthood Advocates of Arizona.
The proposed amendment would make the ability to obtain an abortion a constitutional right and would outlaw abortion only after the unborn child is viable outside the womb. A child is usually considered viable around 24 weeks into a pregnancy.
The amendment would also allow later-term abortions to “protect the life or physical or mental health of the [mother].”
However, the “It Goes Too Far” campaign argues that the amendment would put women at risk by lowering medical standards.
Leisa Brug, campaign manager for It Goes Too Far, called the amendment “reckless” in a Tuesday statement responding to the Arizona Supreme Court’s decision.
“Nearly 80% of voters support reasonable limits on abortion. Arizonans expect health and safety standards, and for parents to be involved in their minor daughter’s decision,” she said. “A proposed abortion amendment that eliminates all of that and expands abortion beyond what voters support is not the answer.”
Democrats are hoping abortion ballot initiatives will help drive their voters to the polls in November.
Arizona is a swing state expected to play a central role in deciding who will be the next president.
