The Arizona Supreme Court ruled that a 1864 law banning all abortions except those to save the mother’s life takes precedence over a 2022 law limiting abortions to 15 weeks of pregnancy.
While not ruling on the constitutionality of the 1864 ban, the court found it was still enforceable given the lack of federal abortion protections and that the newer law did not explicitly override it.
“We consider whether the Arizona Legislature repealed or otherwise restricted [the old law] by enacting…the statute proscribing physicians from performing elective abortions after fifteen weeks’ gestation,” Justice John Lopez wrote. “This case involves statutory interpretation—it does not rest on the justices’ morals or public policy views regarding abortion; nor does it rest on [the old law’s] constitutionality, which is not before us.”
The decision affirms a lower court injunction but stays full enforcement for 14 days to allow parties to pursue further action.
It also remands any remaining constitutional challenges to the trial court.
“Absent the federal constitutional abortion right, and because [the fifteen-week limit] does not independently authorize abortion, there is no provision in federal or state law prohibiting [the 1864 law’s] operation. Accordingly, [the 1864 law] is now enforceable,” Lopez wrote.
The ruling comes as abortion rights activists work to put a constitutional amendment protecting abortion on Arizona’s November ballot in response to the state’s near-total ban going into effect.
“The abortion issue implicates morality and public policy concerns, and invariably inspires spirited debate and engenders passionate disagreements among citizens,” Lopez added. “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.”
