In 2022, the U.S. Supreme Court overturned Roe v Wade with the Dobbs v Jackson Women’s Health Organization 6-3 decision, effectively returning decisions about abortion care to the states.
In Arizona, this meant the question of whether a total abortion ban enacted in 1864, when AZ was still a territory and before women could vote, was the current effective state law. The 2022 AZ legislature (31 R / 29 D in the House and 16 R / 14 D in the Senate) passed a 15-week abortion ban by a purely partisan vote, which was signed into law by Gov. Ducey. The territorial ban was not repealed. In fact, the 2022 law explicitly says the act does not ‘recognize a right to abortion’ and it “does not intend [the] act to make lawful an abortion that is currently unlawful”. It specifically states that it isn’t meant to repeal the territorial ban.
The question of which law took precedence – the 2022 15-week ban or the 1864 territorial total abortion ban with no exceptions for rape or incest – immediately began to make its way through the AZ court system until it ended in the AZ Supreme Court.
This week, the AZ Supreme Court made their 4-2 decision (which you can read here) stating that the 1864 territorial total abortion ban was the current state law. This ruling is not in immediate effect, as they are waiting for a lower court’s ruling about the law’s constitutionality. But the law could potentially be in effect within weeks, making physicians who provide abortion care subject to potential prosecution and jail time. Although, the current attorney general Kris Mayes has said she wouldn’t prosecute any physician who provided an abortion, it is highly unlikely that any medical doctor would put their license and livelihood at risk – because who knows if a future attorney general might not retroactively prosecute?
Women, physicians and politicians across the state were stunned by this decision. What are potential solutions?
First, it is within the hands of the current AZ state legislature to fix this. They are currently in session and could repeal the 1864 ban. In fact, quite a few AZ NOW PAC endorsed legislators had already sponsored a bill to do this exact thing earlier in the session = HB2677.
The day after the AZ Supreme Court decision, Rep Stahl-Hamilton introduced a motion to immediately bring HB2677 to a vote. The Republicans made a countermotion to adjourn until next week. That motion to adjourn was passed 30-29, with one Republican (Rep Gress) voting with the Democrats. Note, however, that Rep Gress is the same person who introduced multiple “fetal personhood” bills in the 2023 session and he is very much anti-abortion. But he is in a competitive district and has suddenly realized that women don’t like having their rights and freedoms stripped away.
If the AZ legislature isn’t able to correct this problem and the courts continue to uphold the total abortion ban, it is up to voters in November. The sobering problem with this is that women will die during the intervening months. Still, it may be the only option left to us. In November, the AZ Abortion Access initiative will be on the ballot – which will establish the right to an abortion in the AZ Constitution. We all need to vote yes on this ballot initiative.
But that is not the only action required in November. Two of the AZ Supreme Court judges who decided with the majority opinion, Clint Bolick and Kathryn King, are up for reelection. Voting no on their retention will send a very strong message that this was the wrong ruling.
And finally, we need to elect feminist candidates to office – candidates who will have women’s backs. So that next time a motion is made, or a bill is introduced, in the Arizona legislature that protects the rights, choices, and safety of women, it will pass.
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