As Arizona continues to reel from the state Supreme Court upholding an 1864 law that bans abortion in nearly all cases, Attorney General Kris Mayes says she may have a plan to fight the court's decision "by the end of the week."
The U.S. Supreme Court decided the Dobbs v. Jackson Women's Health Organization case in 2022, overturning a half century of Roe v. Wade precedent. After that decision, the 1864 territorial law was positioned to overtake the abortion laws on the books.
Since the Arizona Supreme Court released its decision Tuesday upholding the 160-year-old abortion ban, except for in cases where the life of the mother is in danger, Mayes has been persistent in her message: No women or doctors will be prosecuted for obtaining or performing an abortion while she is attorney general.
But after an attempt to rescind the 1864 law went awry in the state Legislature Wednesday morning, the path to a quick middle-ground solution for public officials seems further out of reach.
READ MORE: AZ Supreme Court upholds territorial abortion ban, set to be illegal in nearly all cases
Arizona is a critical swing state, and reproductive health care will play a big part in the November election. As of last week, pro-choice advocates say they have more than 500,000 signatures for the Arizona Abortion Access Act ballot initiative, far beyond the number needed.
"If the ballot measure passes, then that supersedes all other laws in place at the time because it will be a constitutional amendment essentially," Mayes said in an interview with The State Press.
The initiative would include a constitutional protection of abortion access up to 24 weeks, but would allow for mental health and life of the mother exceptions.
"It's become much more of a political issue and the key constituency for Democrats in terms of whether or not they're going to have a successful fall election," said Dave Wells, a University consultant and research director at the Grand Canyon Institute.
Mayes vows to protect women
The ruling from the Arizona Supreme Court includes the order for a 14-day stay while a lower court reviews challenges to the 1864 abortion ban. Beyond those two weeks, Arizonans, abortion providers and lawmakers alike are unsure what the future holds until a ballot initiative is passed.
Mayes thinks it will be more than two weeks before the near-total abortion ban takes effect because there is a 45-day period after the stay where the decision can not go into effect due to a 2022 court case called Brnovich v. Isaacson.
"If the (state) Legislature does not repeal this law, Planned Parenthood and other providers are going to have to make some very tough decisions about what to do," Mayes said.
Democratic Gov. Katie Hobbs gave Mayes centralized authority over "abortion-related criminal prosecutions" in a June 2023 executive order. Since then, the attorney general has reaffirmed her commitment to protecting women and doctors from criminal prosecution.
"I will not prosecute any doctor, nurse, medical provider, woman or any person helping a woman to have an abortion under the 1864 law," Mayes said. "And if they try to prosecute, I will go to court to stop them."
Mayes said that her office is exploring all avenues available to counter the state Supreme Court decision, but she was not ready to disclose those possibilities as of Wednesday morning. The attorney general's office may "have something, hopefully, by the end of the week," Mayes said.
Some potential options could include litigating some of the "unresolved constitutional issues" in the Pima County Superior Court left by the state Supreme Court or taking the case to the U.S. Supreme Court, according to Mayes.
Though that sort of litigation could take time, Mayes said she is "committed to doing everything (she) can to making sure that this 1864 abortion total-abortion ban never is actually implemented in the state of Arizona."
Mayes said this new law does not directly impact in vitro fertilization. However, the state Supreme Court decision may inspire lawmakers to introduce "personhood" legislation that could have an impact on IVF.
The political impact
University students will play an important role in the upcoming election because younger voter groups tend to be socially liberal and affiliate with the Democratic party while older groups are more traditionally supportive of the Republican party, according to Wells.
For University voters, the topic of reproductive health care is all-encompassing, meaning access to medication abortion, contraception and IVF all play into who they will support for office.
"I think what you're going to see is a strong effort by Democrats to tie the two (abortion and IVF) together in ways to help make people concerned," Wells said, also proposing the Republicans will attempt to keep the issues separate.
READ MORE: Election experts discuss 2024 election, young voter turnout
Mayes, who is an ASU alumna, believes that University voters will consider the availability of reproductive health care in certain states when deciding where they want to attend school.
"How in the world can we expect to attract the best and brightest students to our universities if we're living in a world and living in a state that has an 1864 abortion ban?" Mayes asked.
Emily Sargent, a senior studying nursing, says reproductive health care is important to her because women's health is something she wants to start a career in.
"I think all aspects of health are important. We look at the whole person," Sargent said. "Just as much as we would look at somebody with a heart attack, we should be looking at somebody with reproductive health issues."
Sargent said that reproductive health care rights will play a huge role in the November election, but she wishes it wouldn't, because the issue "has no place in politics."
"A woman or person with reproductive organs cannot have their needs met when there is legislation dictating what is 'right' or 'wrong' when it comes to standard medical procedure," said Zoe Blocher-Rubin, the vice president for Young Democrats and a sophomore studying political science and philosophy, in a text message. "Denying women comprehensive reproductive health is as irresponsible as denying basic women’s health care."
Until the 1864 law takes effect, abortions are legal through 15 weeks. Beyond that, they are only legal in a medical emergency. The attorney general's website explains the current Arizona abortion laws and has her press releases for public viewing. Mayes will continue to keep it updated over the next few months with information on how to keep data private for people seeking reproductive care in Arizona.
"(Lawmakers) are about to find out that the women and men of Arizona do not want to be subjected to an 1864 abortion ban that was passed when Arizona wasn't a state, women couldn't vote and the Civil War was still raging," Mayes said.
Edited by Grey Gartin, Sadie Buggle and Caera Learmonth.
Editor's Note: Kris Mayes served as an editor for The State Press during her time at Arizona State University.
Reach the reporter at elbradfo@asu.edu and follow @emmalbradford__ on X.
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