Arizona Supreme Court Greenlights Near-Total Abortion Ban, Making November Ballot Fight Existential

PHOENIX, ARIZONA - OCTOBER 08: Arizona Secretary of State and Democratic gubernatorial candidate Katie Hobbs speaks at a Women's March rally in support of midterm election candidates who support abortion rights outsi... PHOENIX, ARIZONA - OCTOBER 08: Arizona Secretary of State and Democratic gubernatorial candidate Katie Hobbs speaks at a Women's March rally in support of midterm election candidates who support abortion rights outside the State Capitol on October 8, 2022 in Phoenix, Arizona. Hobbs faces Trump-endorsed Arizona Republican nominee for governor Kari Lake in the midterm elections on November 8. (Photo by Mario Tama/Getty Images) MORE LESS
Start your day with TPM.
Sign up for the Morning Memo newsletter

The Arizona Supreme Court Tuesday supplanted the state’s 15-week abortion ban with a near-total one dating from 1864, making existential a proposal to protect abortion rights organizers are currently working to get onto the ballot this fall. 

The court ruled to resurrect the 1864 law — passed when Arizona was still a territory and women lacked the right to vote — four to two. The 7th justice on the bench, Bill Montgomery, recused himself just before the arguments after uproar following reporting revealing him to have accused Planned Parenthood of orchestrating “the greatest genocide known to man.” Absent further legal action, the 19th-century law will spring back into force in two weeks.

The majority, while tossing the part of the 15-week ban that allows for abortions up to that limit, sustained its punishments for doctors who perform the procedure outside that window. That comes on top of the mandatory two-to-five-year prison sentence for providers included in the 1864 ban.

“In light of this Opinion, physicians are now on notice that all abortions, except those necessary to save a woman’s life, are illegal, and that additional criminal and regulatory sanctions may apply to abortions performed after fifteen weeks’ gestation,” Justice John Lopez wrote for the majority.

Vice Chief Justice Ann Scott Timmer, writing for the dissenters, took the same approach as the appeals court, finding that the two laws could exist harmoniously, with the 15-week ban acting as an exception to 1864’s near-total restrictions. In that scheme, the 15-week ban would control abortions up to that point, and only then would the 1864 ban kick in.  

“If a physician performs an abortion at the thirteen-week gestation point, the state cannot prosecute the physician” under the 1864 law, Timmer wrote. “But if the physician performs an abortion at the sixteen-week gestation point and without a medical emergency in violation of [the 15-week ban], the state may prosecute the physician” under either the 15-week ban or the 1864 law. 

The majority stayed its decision for 14 days, preventing the 1864 law from going back into effect for that short window and giving plaintiffs time to decide whether to pursue other constitutional arguments at the trial court. Jill Habig, president of the Public Rights Project, which represented one of the plaintiffs in the case, told TPM that they are “assessing all the options available.” 

Habig said that the majority’s layering of the 15-week ban’s punishments atop the 1864 ones “defies the logic of standard statutory interpretation that you learn in law school.”

“They combined both of them into an even more draconian law,” she added.   

The ruling both calls into question the authority of Arizona’s Democratic state leadership to defang the ban, and underscores the soaring stakes of November’s ballot initiative. 

Gov. Katie Hobbs (D) eked out a win in her 2022 election by running heavily on reproductive freedom. She issued an executive order to give the attorney general, Kris Mayes (D), jurisdiction over abortion-related prosecutions (much to the chagrin of the county attorneys she’d taken that authority from). Mayes also bowed out of defending the 1864 law in this case. The prosecutorial discretion Hayes enjoys makes murky how or if the new ban will be enforced. 

“Let me be completely clear, as long as I am Attorney General, no woman or doctor will be prosecuted under this draconian law in this state,” Mayes said in a statement following the ruling.

Still, the state Supreme Court is composed of seven Republican appointees. The makeup of the court, coupled with the Republican-controlled state legislature, likely leaves ballot initiatives as the only path to any abortion access in the state. The organizers behind a push to enshrine abortion rights in the state constitution said this week that they have already far surpassed the signature requirement with 500,000 collected, and plan to gather a couple hundred thousand more.

The power of abortion headlining the state’s elections — a potential boon to Democrats — is clear in the reactions to the rulings. 

Kari Lake, the leading contender for the Republican Senate nomination, quickly disavowed the decision (despite previously calling abortion the “ultimate sin” and applauding bans in other states) saying that a “pre-statehood law” is “out of step with Arizonians.”  

Leisa Brug, campaign manager for It Goes Too Far, the group opposing the Arizona abortion amendment, tried to minimize the ruling in its statement.

“Abortion remains legal up to 15-weeks in Arizona while [a]waiting further potential action from the courts,” she hand-waved. “Reasonable people can have different opinions on abortion and policy.”

Meanwhile, Democrats pounced, with President Joe Biden, Vice President Kamala Harris and White House Press Secretary Karine Jean-Pierre all making statements connecting the ruling to Donald Trump. In one statement, the campaign called it “Donald Trump’s Arizona ban.” 

“Arizona just rolled back the clock to a time before women could vote — and, by his own admission, there’s one person responsible: Donald Trump,” Harris said in a campaign statement.  

The Biden multi-platform response echoes its reactivity last week, when the Florida Supreme Court, on the same day, upheld a 15-week ban and greenlit an abortion rights amendment to appear on the ballot in November. There, the Biden campaign framed its approach to the state as one centered on abortion rights, hoping to ride the momentum that has made related initiatives successful in every state they’ve appeared on the ballot.

And Arizona has a safeguard on its abortion amendment, should it pass, that Florida lacks. Its Republican legislators can’t tamper with or undermine the amendment after passage.

“In Arizona, if they want to make significant changes, they have to put it back on the ballot,” Anne Whitesell, an associate professor at Miami University who studies ballot initiatives, told TPM in a recent interview. Aside from Arizona and California, she added, “every other state legislature is free to ignore it or rewrite it.”   

The Arizona legislature tried to remove that guardrail in a 2022 proposal, but voters rejected it soundly. 

The ballot initiative, then, has gone from potential turnout-juicer and underminer of a 15-week ban to the last resort in a state that will soon have one of, if not the, most severe abortion bans in the country. 

“The stakes couldn’t be higher for November — and in the meantime, thousands of women will suffer,” Habig said. 

Latest News
Masthead Masthead
Founder & Editor-in-Chief:
Executive Editor:
Managing Editor:
Associate Editor:
Editor at Large:
General Counsel:
Head of Product:
Director of Technology:
Associate Publisher:
Front End Developer:
Senior Designer: