What to know as Arizona’s centuries-old near-total abortion ban heads to the state’s Supreme Court

(NEW YORK) — The Arizona State Supreme Court will begin hearing oral arguments Tuesday over whether a centuries-old near-total abortion ban will be reinstated.

Currently, abortion is banned at 15 weeks or later in Arizona. Patients are required to make two appointments, the first for an in-person counseling session and the second at least 24 hours later for the abortion, according to the Guttmacher Institute, a research group that focuses on sexual and reproductive health.

When the U.S. Supreme Court overturned Roe v. Wade last summer, ending a federally protected right to have an abortion and giving states the right to make their own laws, Arizona providers weren’t sure which abortion law took precedent.

One option was the 15-week ban, which was signed into law by then Gov. Doug Ducey in 2022 and enforced after Roe fell. The other, from 1864, when Arizona was still a territory, would essentially ban abortion in the state.

Under the law, anyone who performs an abortion, or supplies medication to induce an abortion, faces between two and five years in prison. There are no exceptions for rape or incest, only if the mother’s life is in danger, according to the language of the bill.

The law was blocked in 1972 after Planned Parenthood Center of Tucson, the predecessor of Planned Parenthood Arizona, sued, arguing it was a violation of the state and U.S. Constitution.

When Roe v. Wade was passed in 1973, it overrode the 1864 law, but that near-total ban was never taken off the books.

In December 2022, the Arizona Court of Appeals “harmonized” the two laws, writing in an opinion that the 1864 law would only apply to non-physicians and that doctors could follow the newer law.

In August of this year, the State Supreme Court agreed to consider a petition regarding the ruling. The court will decide whether the older or newer law, or a combination of the two, will be enforced.

Planned Parenthood Arizona plans to argue that the Civil War era law should not dictate the reproductive rights of Arizonans in the present day and to affirm the Court of Appeals’ decision to preserve abortion access.

“This archaic abortion ban the intervenors are trying to revive is cruel, harmful, and unpopular with the majority of Arizonans,” Kelley Dupps, Planned Parenthood Arizona senior director of public policy & government relations, said in a statement back in August. “It has no place dictating our reproductive freedom and how we live our lives today.”

“We are confident that the Supreme Court will affirm the court of appeals’ well-reasoned decision that preserved access to abortion care. We will not stop fighting for our patients at the courthouse and beyond,” the statement continued.

At the same time, abortion advocates are trying to get a ballot measure approved for the 2024 election that would enshrine abortion right in Arizona’s constitution.

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