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The near-total abortion ban upheld by the Arizona Supreme Court this week has dominated headlines across the state and country.
But not as much attention has been paid to what exactly "near-total" means.
The law, adopted by Arizona’s first territorial legislature in 1864, specifically prohibits any person from helping a pregnant woman “take any medicine, drugs or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless it is necessary to save her life.”
Violation of that law is punishable by two to five years in prison.
The Washington Post has more on the questionable character who ran the territorial legislature that first passed the law.
But it’s not just some obscure law passed by territorial lawmakers and forgotten for well over a century.
Lawmakers readopted the law in 1901, then reenacted the law in 1977 — four years after the U.S. Supreme Court’s Roe v. Wade decision. Former Republican Attorney General Mark Brnovich highlighted those subsequent decisions when he asked the court to lift a 50-year old injunction on the territorial-era law after the U.S. Supreme Court overturned Roe v. Wade in 2022.
Republican state lawmakers explicitly endorsed the law again in 2022, when they passed a 15-week abortion ban a few months before Roe was overturned.
They also included an intent clause in the bill adopting the 15-week ban, which stated the new law did not repeal the territorial-era ban.
Arizona Supreme Court justices cited that language in their ruling that puts the near-total ban back into effect.
The old law has now divided Republican lawmakers. Many praise the court for upholding it, and applauded the justices for understanding it was their intent all along for the stricter of the two bans to take effect if Roe was overturned. But others, including Sens. T.J. Shope and Shawnna Bolick, as well as Rep. Matt Gress, are now calling for it to be repealed (they all happen to hail from competitive legislative districts, too).
But Shope and Bolick, who voted for the 2022 15-week ban bill, never brought up repealing the territorial ban two years ago. Shope says there was never any discussion about doing so during those debates. (Gress wasn’t sworn into office until 2023 – he was working for Doug Ducey when the former governor signed the 15-week ban into law.)
Democrats, on the other hand, have introduced legislation to repeal the territorial law for six years, with little success. The most recent bill, introduced by Rep. Stephanie Stahl Hamilton in January, went largely ignored this year until the Supreme Court ruling this week.
They say that’s proof that the change of heart among a minority of Republican lawmakers has more to do with politics than their actual policy positions.
Or, as Stahl Hamilton said of Gress, “He’s just trying to save his bacon.”
— Wayne Schutsky, field correspondent
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