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Arizona Supreme Court rules that an 1864 law protecting almost all unborn children is enforceable

by | Apr 9, 2024

By Dave Andrusko

In a 4-2 decision, the Arizona Supreme Court ruled Tuesday that a 160-year-old law protecting almost all unborn children is enforceable. The 1864 law was codified in 1901 and includes an exception to save the mother’s life.

In December the Court heard arguments over which law governs abortion in their state: the 1901 law that protects unborn children in almost all cases, a 2022 law that allows abortion through the 15th week, perhaps even some hybrid.

The state Supreme Court “was asked for clarity following months of uncertainty and legal wrangling over which law should apply in the state,” according to CNN’s Cindy Von Quednow.

This morning the justices held in Planned Parenthood of Arizona vs. Mayes/Hazelrigg that the 15-week protective law “does not create a right to, or otherwise provide independent statutory authority for, an abortion that repeals or restricts” [the Civil War-era ban] “but rather is predicated entirely on the existence of a federal constitutional right to an abortion since disclaimed” by the 2022 Dobbs decision that overturned Roe v. Wade.

Furthermore, the justices wrote,

“The abortion issue implicates morality and public policy  concerns, and invariably inspires spirited debate and engenders passionate disagreements among citizens. A policy matter of this gravity must ultimately be resolved by our citizens through the legislature or the initiative process. Today, we decline to make this weighty policy decision because such judgments are reserved for our citizens. Instead, we merely follow our limited constitutional role and duty to interpret the law as written For the reasons discussed, the legislature has demonstrated its consistent design to restrict elective abortion to the degree permitted by the Supremacy Clause and an unwavering intent since 1864 to proscribe elective abortions absent a federal constitutional right—precisely what it intended and accomplished in § 36-2322. To date, our legislature has never affirmatively created a right to, or independently authorized, elective abortion. We defer, as we are constitutionally obligated to do, to the legislature’s judgment, which is accountable to, and thus reflects, the mutable will of our citizens.”

“It’s unclear just how, or if, the law will be enforced,” Ray Stern wrote for the Arizona Republic. “Democratic Gov. Katie Hobbs issued an executive order last year giving all power to enforce abortion laws to the state attorney general. The current attorney general, Democrat Kris Mayes, has vowed not to enforce any abortion bans. But her decision and Hobbs’ order could be challenged by one of the state’s county attorneys.”

Meanwhile, the pro-abortion Arizona for Abortion Access, “announced it had gathered enough signatures for a November 2024 ballot measure that would ask voters to enshrine abortion rights in the state’s constitution,” Von Quednow reported. “Supporters announced they had gathered more than 500,000 signatures, which is far more than the roughly 383,000 signatures they need to file with the state by the July 3 deadline.”

The ruling goes into effect in 14 days. An appeal is expected.

Categories: State Legislation