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AZ Supreme Court upholds territorial abortion ban, set to be illegal in nearly all cases

Attorney General Kris Mayes said she will not enforce the ruling, which goes into effect in 14 days

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"The 1864 law is set to outlaw nearly all abortions, pro-life legislators and interest groups will be positioned to take legal action against the state officials."

The Arizona Supreme Court upheld an 1864 law Tuesday to ban nearly all abortions in the state except for when the pregnancy could endanger the life of the mother. 

The court ruled 4 - 2 and said in its opinion, "the (territorial) statute is now enforceable, prospectively prohibiting abortion unless necessary to save a woman’s life." But the court said the law is stayed for 14 days for a lower court to review other challenges.

Aadika Singh, a reproductive justice senior attorney with Public Rights Project who is representing Pima County Attorney Laura Conover, one of the parties in this case, wrote in a comment, "This is a devastating blow to reproductive healthcare in the United States. The Arizona Supreme Court allowed an extreme criminal abortion ban to take Arizona back in time 150 years. This decision will force Arizonans to risk their lives and resort to extreme measures to get the medical care they need."

@statepress On Saturday, Jan. 20, the streets of downtown Phoenix were flooded with people attending the Bigger Than Roe National Women's March. @womensmarch #news #roevwade #womenshealth #phoenix #dtphx #women #healthcare #asu ♬ original sound - statepress

According to Singh, it now falls to the people of Arizona to reverse this decision through a voter initiative.

Since the overturning of Roe v. Wade by the U.S. Supreme Court, Arizona's 1864 territorial law on abortion was argued before the state's highest court. 

Today, the court released its decision, causing an uproar in pro-choice circles and the rest of the Arizona political world. The decision comes as Planned Parenthood Arizona and other pro-choice groups announced a week ago they had more than 500,000 signatures to get the Arizona Abortion Access Act initiative on the ballot this November, which would give state constitutional protections to abortion.

"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," Attorney General Kris Mayes said in a statement released on her X, formerly Twitter, account. "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."

Gov. Katie Hobbs gave centralized authority over "abortion-related criminal prosecutions" to Mayes's office in a June 2023 executive order and asked the attorney general to not prosecute doctors providing abortion services or prosecute women who get an abortion. 

The executive order, which is still in effect, states the attorney general will assume "all duties with regard to any criminal prosecution of a medical provider or other entity or individual that is pending or brought in the future by the county attorney of any county in this State for violation of any State law restricting or prohibiting abortion care."

The executive order references two state laws against providing any care to people seeking an abortion unless to save the life of the mother. The law requires two to five years in prison for providers. That executive order also established the Governor’s Advisory Council on Protecting Reproductive Freedom.

Now that the 1864 law is set to outlaw nearly all abortions, pro-life legislators and interest groups will be positioned to take legal action against the state officials.

"It is a dark day in Arizona," Hobbs wrote in a post on X, formerly Twitter. "We are just fourteen days away from one of the most extreme abortion bans in the country, but my message to Arizona women is this: I won’t rest, and I won’t stop fighting until we have secured the right to abortion."

The presumed candidates for Sen. Kyrsten Sinema's Senate seat Republican Kari Lake and Democrat Rep. Ruben Gallego both sounded off on the decision and showed their disapproval.

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In a statement released on X, Lake said it is "abundantly clear that the pre-statehood law is out of step with Arizonans."

"I wholeheartedly agree with President Trump - this is a very personal issue that should be determined by each individual state and her people," Lake continued in the statement. "I oppose today's ruling, and I am calling on Katie Hobbs and the State Legislature to come up with an immediate common sense solution that Arizonans can support."

Gallego called the decision "bulls**t" in a 35-second video uploaded to X.

"This decision rips away the right for women to make their own healthcare decisions with their doctors. I promise you that we will fight this together. And with your help, we will win," read the caption to the video uploaded on Gallego's X account.

Editor’s note: This story was updated with new quotes at 12:12 p.m. on April 9, 2024. This story is developing and may be updated.

Edited by Walker Smith and Angelina Steel. 

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