The Arizona Supreme Court will consider reviving a Civil War-era abortion ban

The Arizona Supreme Court has agreed to consider the petition of an anti-abortion doctor who argues that a near-total abortion ban from 1864 should be the law of the land. 

In March, Dr. Eric Hazelrigg, medical director of a chain of anti-abortion clinics, filed an appeal with the state’s high court, urging the justices to overturn a December 2022 ruling that upheld the current 15-week limit and called on them to reinstate a near-total ban on the procedure. On Wednesday, the Supreme Court agreed to take up the case and set a briefing schedule that stretches into October.  

A look back at the history

The U.S. Supreme Court’s decision to strike down the constitutional right to an abortion last year set off months of turmoil and uncertainty in Arizona, as Republican state leaders went to court to revive a near-total ban from the state’s territorial days that had been blocked in 1971. 

The 1864 law that former Attorney General Mark Brnovich hoped to enforce bars doctors from performing abortions in all cases except when the patient’s life is in danger, and carries with it a mandatory 2- to 5-year prison sentence. At the same time, a law that had passed just a month before the U.S. Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization restricted abortions past 15 weeks. 

Planned Parenthood Arizona, which runs four of the state’s nine abortion clinics, pushed back on attempts to implement the 1864 ban. Brnovich argued that a provision in the 15-week law which said it didn’t repeal any other laws passed before it allowed the 1864 ban to go back into effect. But attorneys for Planned Parenthood Arizona rebutted that Brnovich’s logic means that every other abortion restriction isn’t repealed, either, implying that some access to the procedure should remain. 

A three-judge appellate panel sided with abortion advocates in December, ruling that the 15-week law should supersede the 1864 law.The judges sought to harmonize the two conflicting statutes and avoid erasing nearly 50 years of lawmaking by deciding that the 1864 ban only applies to non-physicians. 

In 1971, the near-total ban — drafted before Arizona was a state — was blocked after Jane Roe, a pregnant woman seeking an abortion, challenged it under the auspices of Roe v. Wade, which had recently been ruled on. A doctor was added to the case to represent her unborn fetus, as well as all “similarly situated” fetuses in the state. When Brnovich went to court to remove the injunction against the 1864 law, he requested that Hazelrigg be allowed to take up that mantle. Hazelrigg’s early intervention in the case opened up a path to an appeal, which he took advantage of after newly elected Democratic Attorney General Kris Mayes refused to appeal to restore the 1864 ban. 

An overview of the arguments

Hazelrigg and his attorneys claim that Arizona has a long record of electing Republicans to statewide office, meaning that residents are in favor of heightened restrictions on the procedure. Dismissing the 1864 ban would effectively undermine the will of past and present voters. 

While appellate judges were concerned by the confusion caused by conflicting statutes, Hazelrigg argues that the two laws are perfectly in sync. A doctor who performs an elective abortion could be punished under the 1864 ban, and abortions obtained past the 15 weeks also empowers county and state attorneys to prosecute doctors based on the 2022 law, potentially doubling legal sanctions. 

“Multiple restrictions do not make a contradiction, much less allow a doubly condemned act,” wrote Hazelrigg’s attorneys in March. 

Denise Harle, director of the Center for Life with legal firm Alliance Defending Freedom, which is representing Hazelrigg, called on the Arizona Supreme Court to rule in favor of the 1864 ban. 

“We urge the Arizona Supreme Court to allow the state’s pro-life law to take effect and protect the lives of countless innocent, unborn children,” she wrote, in an emailed statement.

Meanwhile, Mayes, who campaigned on protecting reproductive rights and opposes the attempt to revive the 1864 ban, argued that Hazelrigg has no standing in the case and should not be allowed to head an appeal. When the “guardian ad litem” position was created in 1971, Roe was the plaintiff and her pregnancy was pivotal to the position’s creation. There is no such plaintiff in the case today. As well, the appellate court resolved the matter satisfactorily in December and Hazelrigg’s petition amounts to little more than the complaint of a disgruntled party, Mayes said. 

On Wednesday, Mayes reiterated her view that the matter has been settled, and urged the state’s high court to reaffirm the decision of the appellate judges.

“The Arizona Court of Appeals made the right decision by ensuring that the territorial-era ban is harmonized with more recent laws regulating abortion,” she said in a written statement.  “While the 15-week ban is far from an ideal status quo, lacking crucial exceptions for rape or incest, it is much preferable to a law passed during the Civil War, before Arizona was a state, and decades before women gained the right to vote.” 

The Democrat, who has mobilized her office to join multiple pro-choice legal actions, also vowed to continue fighting to protect reproductive rights. 

“Bottom line: my office and I remain unwavering in our commitment to protecting the rights of Arizonans to make their own private medical decisions without interference, and we will continue to work tirelessly to safeguard those rights,” she wrote. 

Planned Parenthood Arizona, which has similarly criticized Hazelrigg’s standing in the case, vowed to keep its clinics open and denounced the attempt to reinstate the 1864 ban. 

“This archaic abortion ban the intervenors are trying to revive is cruel, harmful, and unpopular with the majority of Arizonans,” PPAZ lobbyist Kelley Dupps said in an emailed statement. “It has no place dictating our reproductive freedom and how we live our lives today.” 

Dupps added that anti-abortion efforts are likely to continue, now that the protections of Roe no longer exist, and advocated for the passage of the Arizona Abortion Access Act, which PPAZ helped craft. That measure, which supporters hope to put on the 2024 ballot, would enshrine abortion access in the state constitution and cut off any future attempts to restrict access to the procedure. 

“This case will not be the last attempt by anti-abortion activists to roll back rights,” Dupps said. “Arizonans deserve the freedom to make their own decisions about their reproductive health, and it is time to secure the right to an abortion in the Arizona Constitution. The recently announced Arizona Abortion Access Act ballot initiative will be a crucial first step in securing a future with better reproductive health care for all Arizonans.”