Ever since Roe v. Wade Overturned Friday by the United States Supreme Court, Arizona abortion providers are plunged into legal uncertainty. Many clinics have closed their doors pending clarification of the legality of the procedure in the state.
On Wednesday, Arizona Attorney General Mark Brnovich said in a statement that he believes an 1864 law that is still on the books is now enforceable — which had been unclear in the days since. roe was undone. This territorial era law is essentially a total ban on abortions in the state.
Brnovich’s word is not yet the last word. The 1864 Act is currently blocked by a court order. But the reason for that order was the 1973 Roe v. Wade decision. “We will soon ask the court to lift the injunction,” Brnovich vowed on Wednesday.
These legal questions will now be tested in the courts. But with the Arizona Attorney General’s office in favor of enforcing the 1864 law, the sweeping abortion ban that proponents feared would return to Arizona may soon be the law of the land.
The law, ARS 13-3603, makes abortion illegal at any stage of pregnancy, with no exception for rape or incest cases. Any abortion provider — including anyone who “provides” a woman with abortion medication or “procures” such a woman to take abortion medication — would face a mandatory two- to five-year prison term.
Even before Wednesday’s announcement, and amid the uncertainty, eight of the nine licensed abortion clinics stopped offering the procedure.
Other laws have so far made this picture even more complicated. This spring, when? roe was still in effect, Governor Doug Ducey signed a 15-week abortion ban law. This law prohibits abortion until after 15 weeks, except in medical emergencies. It is expected to come into effect in about three months.
In Brnovich’s statement on Wednesday, he clarified that the 15-week ban does not replace the territorial law. “Our office has concluded that the Arizona legislature has made clear its intentions regarding abortion laws,” Brnovich wrote. the pre-roe law “will not be repealed” once the 15-week ban goes into effect.
Arizona State Senator Nancy Barto, a Republican representing northern Phoenix and other parts of the valley, was one of the main authors of the 15-week ban. She has said her intention was to ensure that the 15-week ban would preserve the 1864 Act. However, Ducey disagrees. When Ducey signed it, he said he expected the 15-week ban, not the old law, to go into effect if the Supreme Court were overturned. Roe.
Asked about this at a press conference on Friday, Barto said, “Governor Ducey signed SB1164” [the 15-week ban]which includes the language that causes the underlying pre-Roe under these circumstances, the law is still in effect.”
Meanwhile, Arizona’s American Civil Liberties Union is filing a lawsuit to prevent enforcement of a separate “fetal personality” law signed in 2021. This law states that every fetus is given full personality rights from the moment of conception – meaning that every law that applies to a person or child also applies to a fetus. Of roe gone, it opens the door to possible persecution of women who undergo abortions.
The ACLU filed a lawsuit on behalf of abortion physician Paul Isaacson in Phoenix, arguing that the law was “unconstitutionally vague as applied to abortion” and put him and “possibly his patients” at risk of criminal charges.
The ACLU filed suit on Saturday, the day after roe was overthrown. So far, it’s unclear whether it will be successful in challenging this law — or whether other abortion rights advocates will succeed in the inevitable challenges of the abortion ban in other Arizona.
To do that, they’ll have to face Brnovich and his office.