Arizona’s Evolving Abortion Laws
April 9, 2024
The Arizona Supreme Court upheld an 1864 pre-statehood law that bans most abortions in the state, ending months of court challenges and political debates about access to abortion. The law prohibits all abortions except when necessary to save a pregnant woman’s life. There is no exception for rape or incest. It states:
A person who provides, supplies or administers to a pregnant woman, or procures such woman to take any medicine, drugs or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless it is necessary to save her life, shall be punished by imprisonment in the state prison for not less than two years nor more than five years.[1]
Enforcement of this law was enjoined in 1973 after Roe v. Wade was decided, but that injunction was lifted in 2022 after the United States Supreme Court issued its decision in Dobbs v. Jackson Women’s Health Organization and overturned the constitutional right to abortion.
The Arizona Supreme Court ruling[2] does not consider the constitutionality of the 1864 law but focuses on whether the law enacted in 2022, which limits abortions to the first 15 weeks of pregnancy, supersedes the pre-statehood ban. Because no state law authorizes abortions, the ruling states that the removal of the federal right to abortion access means the 1864 law stands.
The ruling will go into effect in 14 days.
Political Response
Democratic officials – including Governor Hobbs, Attorney General Kris Mayes, and state legislators – condemned the ruling and pledged to block efforts to prosecute physicians who perform abortions.
The Governor called on the legislature to immediately repeal the 1864 law.
Republican officials had a range of opinions. Some celebrated the ban on all abortions, but others expressed disappointment and pledged support to repeal the 1864 law and restore access to abortions up to 15 weeks.
The House Speaker and Senate President said the Court’s decision was “one based solely on the text of the law – it was not a policy statement.” They pledged to discuss the ruling with Republican lawmakers to determine whether to pursue legislation on the issue.
Next Steps
Though the legislature is still in session, it is unclear whether the Republican majority could find agreement with Governor Hobbs to reestablish access to some abortions – especially right before a highly partisan primary election.
The Governor and other supporters of abortion access are focusing on a citizen’s initiative that would establish a right to abortion.[3] The leaders of the initiative effort say they have obtained the voter signatures they need to take their proposal to voters in November.[4]
Arizona Academy of Family Physicians (AzAFP) Policy Statement on Protecting the Patient-Physician Relationship
The AzAFP has grave concerns about laws that interfere in the confidential relationship between a patient and their physician. The AzAFP fundamentally opposes the unprecedented ability for private citizens to take legal action against a physician who aids or abets the performance or inducement of an abortion based on a suspicion. The AzAFP opposes external interference in the patient-physician relationship (AzAFP BOD action Fall 2021).
Disclaimer: The information provided herein does not and is not intended to constitute legal advice; instead, all information and content are for information purposes only. In addition, the information provided may not contain the most up-to-date legal or other developments. AzAFP recommends that you consult with your own legal counsel for guidance regarding your specific practice and activities.
[1] A.R.S. § 13-3603
[2] Planned Parenthood v. Kristin Mayes/Hazelrigg, April 9, 2024.
[3] Arizona for Abortion Access.
[4] “Backers of ballot measure to guarantee abortion rights say they’ve collected 500,000 signatures.” Arizona Mirror. April 2, 2024.