Arizona’s Supreme Court is Giving the Attorney General 90 Additional Days on Her Abortion Ban Strategy

Monday, Arizona’s high court gave state Attorney General Kris Mayes an additional 90 days to determine further legal action in the case of a 160-year-old almost-total ban on abortion legislators recently voted to appeal.

For now, the Arizona Supreme Court’s order leaves temporarily in place a more recent law that legalized abortion up to 15 weeks gestation. It also allows Mayes more time to determine whether or not to take the case to the United States Supreme Court.

AG Mayes expressed gratitude for the order, saying the soonest the 1864 law can take effect now is September 26. This includes the 90 days just granted and an additional 45 days stipulated in a different case.

“I will do everything I can to ensure that doctors can provide medical care for their patients according to their patients according to their best judgment, not the beliefs of the men elected to the territorial legislature 160 years ago,” said Mayes. 

In April, Arizona’s Supreme Court voted to reinstate the older law that didn’t provide exceptions for incest or rape and permits abortions only if the life of the mother is in jeopardy. The majority opinion suggested physicians could be prosecuted and sentenced to as long as five years in prison if convicted.

In the court’s 4-2 split decision, Justice John R. Lopez IV wrote the 2022 law allowing abortions up to the 15 weeks of gestation depended on the existence of a federal constitutional right to abortion. 

Since the U.S. Supreme Court eliminated the right in the Dobbs v. Jackson Women’s Health Organization ruling two years ago, the legislation can’t overrule one passed first in 1864, when Arizona was still a territory.

“Absent the federal constitutional abortion right, and because (the 15-week abortion law) does not independently authorize abortion, there is no provision in federal or state law prohibiting (the 1864 law’s) operation. Accordingly, (the 1964 law) is now enforceable,” wrote Lopez.

That means abortions are illegal in all cases except to save the life of the mother.

“In light of this opinion, physicians are now on notice that all abortions, except those necessary to save a woman’s life, are illegal,” wrote Lopez.

Arizona’s state legislature narrowly voted to repeal the law

The state legislature then narrowly voted to repeal the law from the Civil War era. However, the repeal will be implemented 90 days after legislators conclude their annual session. It remains unclear if the older ban will be enforced prior to the repeal taking hold.

The anti-abortion group that defended the ban, Alliance Defending Freedom, said it would continue fighting despite the most recent delay.

“Arizona’s pro-life law has protected unborn children for over 100 years,” said Jake Warner, the group’s senior counsel. “We will continue working to protect unborn children and promote real support and health care for Arizona families.”

Angela Florez, Planned Parenthood Arizona CEO, welcomed the move. She maintains the organization “will continue to provide abortion care through 15 weeks of pregnancy, and we remain focused on ensuring patients have access to abortion care for as long as legally possible.”