Arizona Judge Rules That Abortion Ban From 1901 Can Take Effect

The ban, which was made law more than a decade before Arizona even became a U.S. state, could put abortion providers in prison for up to five years.

Arizona Judge Rules That Abortion Ban From 1901 Can Take Effect
The Hon. Kellie Johnson presides over a hearing in Pima County Superior Court in Tucson, Ariz. on Friday, Aug. 19, 2022. Photo:Mamta Popat/Arizona Daily Star (AP)

Arizona can officially enforce a near-total abortion ban that existed more than a decade before it would join the United States as its 48th member. On Friday, a state court judge in a Southern Arizona county lifted an injunction, allowing a 1901 abortion ban to go into effect while failing to clarify how this change will interact with dozens of anti-abortion laws already on the books.

A version of this law was first passed in the territorial legislature back in 1864 but was amended in 1901. (Arizona joined the union in 1912.) When Roe v. Wade was decided in 1973, the courts dropped local litigation surrounding the law because of the Supreme Court decision.

So, when the Supreme Court overturned Roe in June, the state’s Republican Attorney General Mark Brnovich asked the court to return to the injunction that blocked the law from going into effect for nearly 50 years.

The law carries two to five years of prison time for anyone who “provides, supplies or administers to a pregnant woman, or procures such woman to take any medicine, drugs or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman.” The law’s only exception is a very narrow, very vague exception for life of the patient—literally stating, “unless it is necessary to save her life.” The ruling will likely be appealed.

One other thing to point out about this law: There is no exception for rape or incest victims, the typical marker of a Republican Just Trying to Be Reasonable. No abortion ban is reasonable, but with this law, Arizona Republicans are standing behind banning abortion no matter how mundane or horrific the circumstances.

“[The ruling] is the result of extremist Attorney General Brnovich and other anti-abortion elected officials who are on a mission to strip Arizonans from their right to live under a rule of law that respects our bodily autonomy and reproductive decisions,” Brittany Fonteno, president and CEO of Planned Parenthood Arizona said in a statement following the ruling.

Even without this draconian law, Arizona has become a minefield of anti-abortion laws passed by an increasingly conservative legislature. There’s a fetal personhood statute that’s being actively litigated. And a 15-week ban passed earlier this year is set to take effect tomorrow, September 24th. But, the 1901 law will immediately stop abortions in the state, since the 15-week ban included language that the 19th-century law will take precedence, should it return.

Pima County Superior Court Judge Kellie Johnson said it was inappropriate for the court to try and reconcile all those differing statutes at this juncture. “While there may be legal questions the parties seek to resolve regarding Arizona statutes on abortion, those questions are not for this court to decide here,” she wrote. Not a great year for courts making decisions, huh?

Brnovich, who tweeted his celebration following the decision, thanked the court for providing “clarity and uniformity on this important issue.”

But, instead of clarity, clinics will be forced to stop providing abortions to avoid criminal penalties against providers. “Today’s ruling by the Pima county superior court has the practical and deplorable result of sending Arizonans back nearly 150 years,” Fonteno said in her statement. “No archaic law should dictate our reproductive freedom and how we live our lives today. We know that today’s ruling does not reflect the will of the people, as Arizonans are overwhelmingly in favor of abortion access.”

The Arizona midterms are in less than two months. There’s a gubernatorial election, Senate race, and more at stake. Instead of laying low following pro-abortion electoral victories around the country, it seems that almost every Republican-led state is intent on showing midterm voters just how much they hate bodily autonomy. It’s a weird strategy for a state that President Joe Biden won by less than 11,000 votes.

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