Arizona upholds Civil War Abortion ban
Law that had been rendered moot by Roe now on the books again
Arizona’s Supreme Court upheld an abortion ban that dates back to the Civil War on Tuesday.
The ban, which had been enacted into law in 1864, bars all abortions except when the mother’s life is at risk. In their decision, the judges reasoned that since Roe was overturned, there was no longer any constitutional right that made the law moot.
“The abortion issue implicates morality and public policy concerns and invariably inspires spirited debate and engenders passionate disagreements among citizens,” the judges concluded. “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.”
The opinion started by explaining some of the challenges to the law historically. In 1971, Planned Parenthood of Tucson sued the state to challenge the laws. While that battle went up the appellate chain, the U.S. Supreme Court established a federal constitutional right to abortion access in 1973 with Roe. So Arizona’s law became dead. The judges wrote that Supreme Court jurisprudence's “mutating lens” affected its decision-making.
After Dobbs, Arizona’s then-Attorney General Mark Brnovich sought to lift the injunction against the ban. A trial court ruled in his favor, and Planned Parenthood challenged.
The judges conceded that the legal questions surrounding this law were unusual, and neither side could offer much precedent to justify upholding or striking down the law.
The court ruled that the 15-week ban that had also been enacted didn’t imply that there had been a constitutional right to abortion before that period. It is worth noting that Republicans at the national level have sought to establish a “standard” for abortion that would limit abortions after a certain period, but much like this decision wouldn’t imply that it is permissible before that time. This could foreshadow what the antiabortion movement pushes for from a presidential candidate.
Vice Chief Justice Ann A. Scott Timmer and Chief Justice Robert Brutinel dissented from the majority opinion.
“The majority’s opinion today will undoubtedly be derided by many as result-oriented or a reflection of individual justices’ ideology,” Timer and Brutinel wrote. “My dissenting opinion will probably spark similar criticism. That is the cross borne by all judges in controversial social-issue cases like this one.”
Arizona activists are currently seeking to pass a ballot initiative. They recently passed the 500,000 threshold of signatures needed to get it on before voters. If passed, then abortion access would once again be legal in Arizona up to the point of viability.