Arizona Doctors Cannot Be Prosecuted Under 1864 Abortion Ban, Court Says

PHOENIX — Arizona cannot prosecute doctors under an 1864 ban on abortions that would have outlawed the procedure in nearly every circumstance, a state appeals court ruled on Friday.

The ruling, which abortion-rights groups celebrated as a qualified victory, offers some clarity after months of uncertainty and legal fights over the fate of abortion in Arizona — and effectively allows licensed doctors in Arizona to perform abortions through the 15th week of pregnancy.

The decision resolved, for the moment, the question of which abortion ban in Arizona would be the law of the land in the wake of the Supreme Court’s decision overturning Roe v. Wade, which had guaranteed a constitutional right to abortion. The Supreme Court decision effectively sent the issue back to states to decide, and many have been caught up in litigation over state bans.

In Arizona, one law predating statehood outlawed the procedure entirely, except to save the mother’s life. Meanwhile, a law passed earlier this year by the state’s Republican-controlled legislature allows abortions through the 15th week of pregnancy, when the majority of women get them.

The ruling on Friday from a three-judge panel of the Arizona Court of Appeals declared that doctors in Arizona could not be prosecuted under the old territorial-era law, effectively rendering it toothless. The ruling also said the old and new laws were not in conflict, but that the new ban simply added another exception to the old one. The court said it sought to “harmonize” the state’s existing abortion laws and did not repeal the older law.

The ruling could be appealed to the Arizona Supreme Court, a prospect that abortion opponents said they welcomed. Cathi Herrod, president of the Center for Arizona Policy, one of the main supporters of the 1864 ban, pointed out that state lawmakers had chosen not to repeal the prestatehood law, even as they passed subsequent abortion restrictions.

“I am confident Arizona’s pre-Roe law limiting abortion to cases where the mother’s life is at risk will be upheld,” she said.

But the incoming governor and attorney general of Arizona are unlikely to defend the 1864 ban. The two are both Democrats who are succeeding anti-abortion Republicans and appeared together during the campaign to denounce that law as a draconian violation of women’s rights.

Governor-elect Katie Hobbs criticized the court’s ruling on Friday for keeping the 15-week ban in place, pointing out that it has no exceptions for rape or incest.

“The decision to have a child should rest solely between a woman and her doctor, not the government or politicians,” Ms. Hobbs said in a statement.

Kris Mayes, who was declared the victor in the race for attorney general on Thursday after prevailing in a recount by just 280 votes out of about 2.5 million ballots cast, said she would “continue to fight for reproductive freedom.”

The outgoing attorney general, Mark Brnovich, a Republican, had argued that the 1864 ban could be enforced while abortion-rights groups fought to keep it from being revived. Mr. Brnovich’s office did not immediately respond to a request for comment.

During a few weeks over the summer when abortion providers believed they could be prosecuted under the territorial-era ban, abortions virtually ceased in Arizona and providers sent women out of state. A court then temporarily blocked the 1864 ban from being enforced while the court case proceeded, allowing abortions to resume.

“It has been a really convoluted environment,” Brittany Fonteno, the president of Planned Parenthood Arizona, said. “It is very clear, with no uncertainty, that abortion is safe and legal in Arizona through 15 weeks of pregnancy. The attorney general’s attempts to take us back to 1864 are not going to be allowed in Arizona.”

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