Arizona Supreme Court revives 160-year-old abortion ban

The decision to ban nearly all abortions thrusts the issue back into the national political spotlight and could shake up races in the battleground state.

The Arizona Supreme Court has revived a 160 year old ban on abortion.

Arizona’s highest court on Tuesday revived a 160-year-old ban on abortion, a decision that ratchets up the political stakes in a state that could decide the 2024 presidential race.

Abortion in the state has been allowed through 15 weeks of pregnancy under a law that the GOP-controlled Arizona Legislature passed in 2022, shortly before the U.S. Supreme Court overturned Roe v. Wade. Abortion opponents and some Republican politicians argued that the recent law didn’t override one dating to 1864 – before Arizona was a state – that banned abortion throughout pregnancy except in lifesaving situations.

The Arizona Supreme Court, in a 4-to-2 decision, agreed that the 19th-century law takes precedence. The court delayed implementation of the ban for at least two weeks to allow for additional legal arguments, but abortion-rights advocates appear to have few options to prevent it from taking effect.

The state high court said legislators had made clear at the time of the 2022 law that they wished to restrict abortion as much as federal law allowed.

“To date, our legislature has never affirmatively created a right to, or independently authorised, elective abortion,” Justice John R. Lopez IV wrote for the court.

Most abortions take place before 15 weeks of pregnancy, and Arizona thus far has seen little change in the number of abortions since the Supreme Court eliminated the constitutional right to the procedure. Now a state with a libertarian streak will have one of the nation’s strictest abortion bans, similar to laws in deep-red states such as Oklahoma and Texas.

It is unclear when or whether the ban will ultimately be enforced. Arizona Attorney-General Kris Mayes, a Democrat, said Tuesday that women and doctors won’t be prosecuted while she holds office.

Nonetheless, the ruling is likely to supercharge the fight over a ballot measure to protect abortion rights that is expected to be on the state ballot in November – and could spill over into other races in a top battleground state. The measure would allow abortion access through foetal viability, or more than halfway through a typical pregnancy. Abortion-rights groups already have collected more than 500,000 signatures, putting the measure on track to clear the threshold required to appear on the ballot.

Arizona is a longtime GOP bastion that has been electing Democrats in recent years. Abortion was a potent issue in the 2022 midterm elections, when Democrats won all major statewide offices and performed better than expected across the country.

November’s election will see many competitive races in the state, meaning Arizona voters could decide which party controls the White House and both chambers of Congress. Republicans have worried that an outright ban would push winnable voters into the Democratic column.

President Biden narrowly won Arizona in 2020 but is trailing former President Donald Trump in most surveys this year, including in a Wall Street Journal poll from March. The poll found that abortion was a rare issue in which voters in seven battleground states favoured Biden over Trump.

“This ruling is a result of the extreme agenda of Republican elected officials who are committed to ripping away women’s freedom,” Biden said Tuesday.

The Trump campaign didn’t immediately respond to a request for comment. Arizona was one of a handful of states that never formally repealed abortion bans that had been on their books before the 1973 Roe decision that recognised abortion rights nationwide for nearly 50 years. When the Supreme Court overturned Roe in June 2022, the old bans once again became potentially enforceable.

In September 2022, a state trial court briefly allowed enforcement of the old ban, but an appeals court stepped in and blocked it. That court said the 19th-century measure needed to be harmonised with the more recent law, effectively allowing abortions up to 15 weeks.

Dow Jones