1864 Law in Arizona May Be Reinstated by Supreme Court

An 1864 law banning virtually all abortions will be a focus at the Arizona State Supreme Court on Tuesday.

The court will begin hearing oral arguments over whether the near-total abortion ban will be reinstated, according to multiple reports.

The Arizona Court of Appeals last December upheld a 2022 law banning abortions after 15 weeks.

Now, attorneys on both sides in Planned Parenthood v. Mayes will present their cases Tuesday morning in Phoenix, KVOA reported.

Under current Arizona law, women seeking abortions are required to make two appointments, an in-person counseling session and, at least 24 hours later, for the abortion, ABC News reported citing the Guttmacher Institute.

After the U.S. Supreme Court sent the abortion issue back to the states by overturning Roe v. Wade in June 2022, Arizona providers weren’t sure which abortion law took precedent – the 15-week ban signed into law by then-Gov. Doug Ducey, R-Ariz., or the 1864 law adopted when Arizona was still a territory.

Under the 1864 law, anyone who performs an abortion, or supplies medication to induce an abortion, faces between two and five years in prison.

That law includes no exceptions for rape or incest, only if the mother’s life is in danger.

The 1864 law was blocked in 1972 after Planned Parenthood Center of Tucson sued, claiming it was a violation of the state and U.S. Constitution.

Roe v. Wade, decided in 1973, overrode the 1864 law, which was never taken off the books.

Last December, the Arizona Court of Appeals “harmonized” the two state laws, writing in an opinion that the 1864 law only would apply to non-physicians and that doctors could follow the newer law, ABC News reported.

The state Supreme Court will decide which law, or a combination of the two, will be enforced.

Planned Parenthood Arizona plans to argue that the 1864 law should not dictate the reproductive rights of Arizonans in the present day, ABC News reported. The group will ask the state’s high court to affirm the Court of Appeals’ decision to preserve abortion access.

“This archaic abortion ban the intervenors are trying to revive is cruel, harmful, and unpopular with the majority of Arizonans,” Kelley Dupps, Planned Parenthood Arizona senior director of public policy & government relations, said in a statement in August. “It has no place dictating our reproductive freedom and how we live our lives today.”

Pro-abortion activists are seeking a 2024 ballot measure that would enshrine abortion right in Arizona’s constitution.

The abortion issue is expected to heavily influence the outcomes of Arizona’s 2024 election races, including contests for Congress and the White House, The Wall Street Journal reported.