Arizona Is Reinstating a Near-Total Abortion Ban Enacted 160 Years Ago — Before Women Could Vote

The Civil War-era law makes performing abortions and helping women find abortion care a felony punishable with prison time

An Arizona abortion ban crafted more than a century and a half ago — when women had no voting power — is on track to be reinstated, adding the state to the growing list of areas in the U.S. where the medical procedure is outlawed.

On April 9, the Arizona Supreme Court ruled in a 4-2 decision that the Civil War-era law, a near-total ban on abortion, is still enforceable.

Introduced in 1864 — long before Arizona gained statehood in 1912 and the 19th amendment granted women the right to vote in 1920 — the ban was dormant for decades under abortion protections granted by Roe v. Wade. But it was never repealed.

Related: Donald Trump Attempts to Walk Back Abortion Stance After Taking Credit for Overturning Roe v. Wade

The 160-year-old law outlaws the procedure from the moment of conception, and does not make exceptions for rape or incest, making it one of the strictest bans in the country, per NBC News. It does include an exception for saving a woman's life.

It also makes abortion — both performing one or helping a woman get one — a felony punishable by fines and a two-to-five-year prison sentence.

"Physicians are now on notice that all abortions, except those necessary to save a woman’s life, are illegal,” the state supreme court said in its ruling.

According to The New York Times, the court — composed entirely of Republican-appointed justices — put the ruling on hold for two weeks, sending the matter back to a lower court where the law’s constitutionality will be argued further.

Related: Biden Campaign Sees Florida as ‘Winnable’ After State’s 6-Week Abortion Ban Threatens Women in the Southeast

In the meantime, Arizona abortion providers plan to continue performing procedures through May while their lawyers, along with Democratic lawmakers, look for ways to prevent the April 9 ruling from taking effect, per the New York Times.

Following the Arizona Supreme Court ruling, President Joe Biden issued a statement about the decision, writing that “millions of Arizonans will soon live under an even more extreme and dangerous abortion ban, which fails to protect women even when their health is at risk or in tragic cases of rape or incest."

“This ruling is a result of the extreme agenda of Republican elected officials who are committed to ripping away women’s freedom,” his statement continued.

Related: President Joe Biden Calls Supreme Court's Decision to Overturn 'Roe v. Wade' 'a Tragic Error'

Arizona Attorney General Kris Mayes, a Democrat who was elected by less than 300 votes in 2022, also pushed back on the ruling, stating that she would not enforce the law, which she described as “unconscionable and an affront to freedom.”

“This is far from the end of the debate on reproductive freedom, and I look forward to the people of Arizona having their say in the matter,” Mayes said in a statement. “And let me be completely clear, as long as I am Attorney General, no woman or doctor will be prosecuted under this draconian law in this state.”

Another noteworthy reaction to the ruling came from Kari Lake, a far-right ally of Donald Trump and a current Republican candidate for Senate in Arizona.

Lake — who not too long ago praised the 1864 abortion ban — quickly changed her messaging this week as it became clear that the issue of reproductive rights could help Democrats get elected in Arizona in November.

In a statement released after the ban was deemed enforceable, Lake said, “I oppose today's ruling, and I am calling on [Governor] Katie Hobbs and the State Legislature to come up with an immediate common sense solution that Arizonans can support.”

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Like Trump, Lake has espoused anti-choice views (including calling abortion "the ultimate sin") and praised the Supreme Court for overturning Roe v. Wade. During her unsuccessful gubernatorial campaign less than two years ago, she enthusiastically endorsed Arizona's 1864 abortion ban.

“I’m incredibly thrilled that we are going to have a great law that’s already on the books. I believe it’s ARS 13-3603,” she said in a 2022 interview, per The New York Times.

The outlet also noted that despite Lake citing the 1864 law's specific statutory code in that interview — and making other comments in support of the original abortion ban — her campaign adviser attempted to convince voters this week that she was referring to something else.

Abortion rights groups have reportedly gathered enough signatures to put a measure on Arizona's general election ballot asking voters to enshrine access to abortion in the state's constitution.

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