Can you still get an abortion in Arizona this week? It depends on who you ask

An 1864 near-total abortion ban takes effect in Arizona this week, according to lawyers for the anti-abortion doctor who won his state Supreme Court appeal to uphold the law, but providers disagree.

Providers representing five of the nine clinics licensed to do abortion care in Arizona say they plan to follow a directive by Arizona Attorney General Kris Mayes that abortion care in the state will be legal at least through June 8. Current law allows abortions up until 15 weeks of gestation and makes an exception for medical emergencies.

The 1864 law, which the Arizona Supreme Court upheld April 9, is a near-total ban that prohibits abortions in all circumstances, including rape and incest, with the only exception being to save the life of the pregnant patient. The Arizona Supreme Court stayed enforcement of the 160-year-old abortion ban for 14 days.

A representative for Scottsdale-based Alliance Defending Freedom maintains the ban takes effect within 14 days of the court's ruling, which is this week. The group represented Dr. Eric Hazelrigg, an anti-abortion doctor at an Arizona crisis pregnancy center, in his successful bid to uphold the law with the Arizona Supreme Court,

“As we read the orders and the relevant law, county prosecutors can begin enforcing the law within 14 days of the Arizona Supreme Court’s ruling,” senior counsel Jake Warner said in a written statement.

The organization did not answer specific questions about whether it would take steps to help bring an abortion case under the provisions of the ban, nor did the group say whether it would pursue further court action to clarify when the law goes into effect.

Mayes and providers, including Planned Parenthood, say abortion services will continue for another 45 days. That's because in October 2022, in a separate lawsuit filed on behalf of a Phoenix doctor and the Arizona Medical Association, the Maricopa County Superior Court entered an order that bars the state from enforcing the 1864 ban until 45 days after the Arizona Supreme Court issues its mandate in the case.

The mandate is scheduled to issue on April 24 and 45 days from that date is June 8.

Officials with Planned Parenthood Arizona plan to abide by Mayes' directive, a spokesperson told The Arizona Republic. The organization, which operates four clinics that provide abortion care in Arizona, is still exploring its legal options, the spokesperson said.

What does the Arizona Supreme Court's April 9 ruling mean?

The pre-statehood law mandates two years to five years in prison for anyone aiding in an abortion, except if the procedure is necessary to save the life of the mother. A law from the same era requiring at least a year in prison for a woman seeking an abortion was repealed in 2021.

Prior to the ruling in Arizona, 14 states across the nation banned abortion at any period of pregnancy, according to the Guttmacher Institute, a policy and research organization that supports abortion rights.

Just four of those — Arkansas, Oklahoma, South Dakota and Texas — have laws similar to what will go into effect in Arizona, allowing abortions only to save the life of the mother. The other 10 states have additional exceptions to the ban such as in cases of rape or incest, according to Guttmacher.

What does the U.S. Supreme Court have to do with the 1864 law?

The abortion ban first codified in Arizona law in 1864 has been sitting on the books for 160 years.

First appearing in the 1864 Howell Code, a book of laws compiled by Arizona's First Territorial Legislature, the state's abortion ban was similar to those in many states. It was enforced vigorously in Arizona until the Roe v. Wade decision in 1973.

In 1971, Planned Parenthood of Tucson sued the state to overturn the old ban. The group lost the case in 1973 when the state Court of Appeals ruled against it. But the U.S. Supreme Court issued its historic Roe v. Wade decision the same year, causing the state Court of Appeals to issue an injunction against the pre-statehood ban.

For almost 50 years, legal abortions were considered a fact of American life, until the Dobbs v. Jackson Women's Health Organization ruling in June 2022 that removed the Roe protections.

The ruling by the new, more conservative U.S. Supreme Court spurred Arizona Republican politicians to ask the courts to lift the injunction from 1973 and allow police and prosecutors to enforce the 1864 law. The new court action had the effect of renewing Planned Parenthood's 1971 legal fight.

What are Arizona providers saying?

Dr. Gabrielle Goodrick, a family physician and owner of Camelback Family Planning in Phoenix, said she is following Mayes' directive and plans to offer abortion care at least until June 8.

"I am listening to the attorney general of the state of Arizona," said Goodrick, whose clinic is the largest independent abortion care provider in the state. "She said June 8 is the earliest but hopefully it won't be effective that day because hopefully there will be stays or injunctions. ... There are a lot of things they can do that can delay this. It's just wonderful to know that the governor and attorney general are doing everything they can."

Mayes, a Democrat, on April 9 said that as long as she is attorney general, "no woman or doctor will be prosecuted under this draconian law in this state."

Arizona Gov. Katie Hobbs, also a Democrat, issued an executive order in June 2023 that centralizes authority over abortion-related prosecutions with the Attorney General's Office, "ensuring differences in interpretation or application of the law by different county attorneys do not chill, deter, or restrict access to lawful abortion care."

However, Hobbs' executive order has not been tested in court and Mayes' promise only lasts as long as she's in office and a future Arizona attorney general could still prosecute under the current statute of limitations. Goodrick said she and other providers, still fearing prosecution and the loss of their medical licenses, have no plans to flout the 1864 near-total ban if and when it takes effect.

"If you are on trial for a felony for doing an illegal abortion, you are going to have some problems keeping your medical license," she said.

Reproductive-rights advocates say a near-total abortion ban will increase maternal mortality in Arizona and also put pregnant people at risk of staying in abusive relationships and of becoming economically unstable.

An initiative scheduled to be on the November general election ballot would enshrine the right to an abortion into the Arizona Constitution.

Goodrick said her mindset is to "just make it to" November. Every day, week or month that abortion care isn't offered in Arizona puts pregnant people, particularly people in disenfranchised populations, at risk, she said. While California Gov. Gavin Newsom's proposal to speed up licensing for Arizona doctors who want to provide abortion care sounds good, Goodrick said it is not a solution.

"The patients that are the most needy are the ones that aren't going to be able to get care," she said. "They have a hard time getting out of state. They have a hard time getting across Phoenix to make their appointments."

Many people who can't go out of state will probably end up ordering abortion pills, often known as a medication abortion, online, Goodrick said.

"I am going to stay here and educate Arizonans on how to get the care that they need," she said.

Reach health care reporter Stephanie Innes at Stephanie.Innes@gannett.com or follow her on X, formerly Twitter: @stephanieinnes.