The Arizona Supreme Court upheld a law on Tuesday a law that punishes those who perform surgical or chemical abortions in Arizona with imprisonment of up to five years, unless it is necessary to save the life of the child’s mother.
The law, which was first put into effect in 1864, essentially prohibits abortion from the moment of conception except in cases where it is necessary to save the mother's life. It was put on hold after the Supreme Court’s 1973 Roe v. Wade ruling but gained attention once again after the Dobbs v. Jackson.
case. In the same year that the Supreme Court issued its landmark decision overturning Roe, the Arizona legislature and then-Gov. Doug Ducey collaborated to pass a law that permits abortions up to 15 weeks of pregnancy but clarified that it did not override the previous law.
In a ruling later that year, the Arizona Court of Appeals stated that, despite both laws imposing strict limits on abortion, a “harmonized” version allowed for abortions up to 15 weeks “when provided by licensed physicians in compliance with the state’s other laws and regulations.”
However, the Arizona Supreme Court declared on Tuesday that “the legislature has consistently shown its intention to limit elective abortion to the extent allowed by the Supremacy Clause, and has held firm in its intent since 1864 to prohibit elective abortions in the absence of a federal constitutional right—precisely what it intended and achieved.”
“To date, our legislature has never affirmatively established a right to, or independently authorized, elective abortion. We defer, as we are constitutionally obligated to do, to the legislature’s judgment, which is accountable to, and therefore reflects, the changing will of our citizens,” the court’s opinion states.
Alliance Defending Freedom, which represented Dr. Eric Hazelrigg, the obstetrician and medical director of Choices Pregnancy Center in Arizona who petitioned the Supreme Court over the law, celebrated the ruling as a win for the “lives of countless, innocent unborn children.”
“Life is a human right, and today’s decision allows the state to respect that right and fully protect life again—just as the legislature intended,” ADF Senior Counsel Jake Warner said in a statement. “Life begins at conception. At just six weeks, unborn babies’ hearts begin to beat. At eight weeks, they have fingers and toes. And at 10 weeks, their unique fingerprints begin to form. Arizona’s pro-life law has protected unborn children for over 100 years, and the people of Arizona, through their elected representatives, have repeatedly affirmed that law, including as recently as 2022.”
Arizona Attorney General Kris Mayes stated that she would not enforce it against any “woman or doctor,” but Warner mentioned that county prosecutors could. Tuesday’s decision is a decisive victory for the pro-life movement, but the fight over abortion in Arizona is not over.
Abortion providers in Arizona have 14 days to challenge the law before it becomes enforceable, and abortion activists are leading a ballot initiative that, if approved on November 5, would essentially guarantee unrestricted abortion throughout all nine months of pregnancy in Arizona. Already, Arizona for Abortion Access reported it got over 100,000 ballot signatures more than the verified 383,923 required by the July 2024 deadline.
The suggested change, which will probably be on the ballot in the upcoming election, uses vague language and undefined terms that allow for on-demand abortions for anyone subjectively deemed at risk by a medical professional. It would also prevent the state from penalizing abortion providers, like the recently upheld law requires, and “opens the opportunity for taxpayer funding of abortion.”
“We’re hopeful that this decision encourages voters to confirm life,” Warner said when asked about the ballot initiative during a Tuesday press conference.
