The Arizona High Court Upheld A 160-Year-Old Abortion Ban. Now What?

Republican legislators in Arizona blocked a vote last week to repeal the 1864 ban on abortion that the Arizona Supreme Court ruled is enforceable earlier this month.

Planned Parenthood issued a statement saying it will continue to provide abortion services “through 15 weeks for a short period of time” — at least until June. It pointed to an order in a separate case barring enforcement of the ban until 45 days after the issuance of the final mandate in the supreme court case, Planned Parenthood v. Hazelrigg. That mandate — a document formally notifying the lower court of the appellate decision and returning jurisdiction for additional proceedings to the lower court — will not take effect until at least 15 days after the decision.

State Court Report spoke to David Cohen, a law professor at Drexel University who focuses on the intersection between law and gender. Cohen has represented abortion providers before the Pennsylvania Supreme Court and written extensively on abortion law. His work was cited by dissenting justices in Dobbs v. Jackson Women’s Health Organization.

The conversation has been edited for brevity and clarity. 

Erin Geiger Smith: The state supreme court ruled that a 1864 abortion law is still in effect. Can that law currently be enforced against Arizonans?

David Cohen: No. The decision won’t go into effect for at least 60 days. And Planned Parenthood, or any other plaintiff who might join the case or file a separate case, may try to further stay the implementation of this old abortion law and keep abortion legal in Arizona through at least November, when there’s the election and likely a vote on a ballot initiative to protect abortion.

Geiger Smith: What can we expect to happen next in the case?

Cohen: All the Arizona Supreme Court decided was that the old statute applies, not a newer statute from 2022 that allowed abortions up to 15 weeks. That was a matter of statutory interpretation. It did not say anything about whether the statute is constitutional. It left that for further determination by the lower court. It remanded the case to the lower court to figure out next steps. So the case is far from over.

I would imagine that either Planned Parenthood will file a motion for summary judgment in the lower court, for a temporary restraining order, or for a preliminary injunction. Or the court will issue some kind of scheduling order or have a conference among the parties to determine next steps.

Geiger Smith: What state constitution claims might you expect Planned Parenthood to raise?

Cohen: This case was originally filed in 1971 and reopened in 2022. They raised a bunch of constitutional claims in their 1971 petition. Beyond the federal constitution claims, they also claimed the statute violated state constitutional provisions around liberty, due process, privacy, choice in family planning and medical treatment, and religion.

Arizona has a “freedom of choice in health care” amendment enacted as a reaction to Obamacare. Similar provisions have been the basis of some challenges to abortion restrictions in Ohio and Wyoming. I hope Planned Parenthood amends their complaint and includes newer constitutional provisions from Arizona’s constitution.

Geiger Smith: Outside of this court case, what are the other moving parts you’re watching in Arizona?

Cohen: This is a complicated story with so many chapters yet to be written. The legislature has now twice attempted, unsuccessfully, to repeal or revisit the old law. But maybe they will be able to break through and successfully change the law.

The governor is pro-choice, and the attorney general is pro-choice. The governor last year said the attorney general is responsible for all abortion prosecutions, and the attorney general has said she will not prosecute. So, there’s probably going to be further fighting about whether that’s an appropriate understanding of prosecutorial responsibilities in Arizona. There’s also a question about whether abortion providers will feel comfortable relying on that.

And then of course, we’ve got the ballot initiative. There will be a clear option presented to the people of Arizona in November: Do you want abortion to be illegal or legal? Let the people of Arizona decide this rather than allow legislators from 1864 to make decisions for people who would have had no say in the laws back then. All signs point to that being on the ballot and the people of Arizona voting in favor of abortion rights, just like the people of every state who have addressed this issue through the direct democracy process.

The most immediate question is: The ban is set to go into effect mid-June — will there be something that keeps the clinics open between mid-June and the election in November?

Geiger Smith: You do expect the ballot initiative to be on the ballot in November?

Cohen: It’s on track. And given that the state has a Democratic governor and attorney general, I think we’re less likely to see some of the efforts to stop the ballot initiative that we have seen in states like Florida, Missouri, and Ohio. It doesn’t mean it will be 100 percent smooth sailing, because there might be private challenges or other government officials who try to stand in the way. But it certainly helps having pro-choice Democrats as the two highest officials in the state of Arizona.

Geiger Smith: How might another old law, the Comstock Act, affect abortion rights?

Cohen: The 1873 Comstock Act is the “zombie law” that everyone should be thinking about. It’s a federal law that bans sending certain things in the mail, and the text of the law includes anything that can produce an abortion. This law hasn’t been enforced in relation to abortion in almost 100 years.

But the anti-abortion movement and many of Trump’s advisors are urging the Trump administration, if he wins the presidency, to strictly enforce the law to ban mailing literally anything that can be used to produce an abortion. That would mean pills, but also instruments, surgical supplies, and equipment. They could use this zombie law to make abortion illegal everywhere in the country.

The number one threat to abortion access in the country right now is the possibility of the Comstock Act being enforced by a Trump justice department.

Geiger Smith: Many different scenarios are occurring state-to-state, but do you see any nationwide threads in the abortion rights debate?

Cohen: Every time we see a state going backwards with respect to abortion rights, it is causing outrage and people are responding politically. Maybe November will prove me wrong this year. But since Dobbs, the backlash to overturning abortion rights has been absolutely clear at the ballot box. Every ballot initiative has been successful, including in some very conservative states. People are voting based on abortion because they’re furious at decisions like those from the Arizona Supreme Court.

That’s the through line. Arizona is just another example of people getting angry over courts turning back the clock — literally, in Arizona.

Erin Geiger Smith is a writer and editor at the Brennan Center for Justice.

Suggested Citation: Erin Geiger Smith, The Arizona High Court Upheld A 160-Year-Old Abortion Ban. Now What?, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Apr. 22, 2024), https://statecourtreport.org/our-work/analysis-opinion/arizona-high-court-upheld-160-year-old-abortion-ban-now-what.