The law, passed in 1864 when Arizona was a US territory, bans all abortions except in the case of “the life of the mother”. There are no other exceptions for rape or incest. The ban is from conception. It does not start after 6 weeks or 15 weeks of pregnancy. The law also criminalizes anyone who performs or helps facilitate an abortion with 2 to 5 years of prison.
Here is the text from the law: "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."
Why now? What changed?
With the right to an abortion upheld by the US Supreme Court in Roe v. Wade 1973, the 1864 law was moot, it could not be enforced. However, it stayed on the books because any attempt to repeal it was voted down by the Republican controlled legislature. Republicans have controlled the legislature for the over the last 50 years. Democrats have not had control of the governor, senate and house during the same year at anytime! (See chart here)
Dobbs, decided in June 2022, overturned Roe. The Arizona legislature, assuming that Roe was about to be overturned, passed a 15-week ban during the 2022 session. It was significant that they did not repeal the draconian total ban of 1864, instead saying that the 15-week ban did not contravene the older law – allowing the Arizona Supreme Court to weigh in at a later day.
On April 9, 2024, they did just that in a 4-2 vote saying the 1864 law was valid and enforceable. (One justice recused himself)
An important step in 2016 that got by most of us
Overlooked is how the Arizona Supreme Court was “stacked” to produce this result. In 2016 the state legislature passed a bill, with no Democrats supporting it, to increase the court from 5 to 7 seats. Arizona law allows the governor to appoint justices to vacant seats. Then Governor Ducey did just that. Picking two extreme conservatives.
The result is that Governor Ducey appointed 5 of the 7 judges currently sitting on the court. All judges on the court are Republicans.
