Startling and concerning abortion ruling in Arizona by the
AZ Supreme Court reported on here from CBS News and most other major media outlets with this similar headline:
“Arizona Supreme Court rules
abortion ban from 1864 can be enforced”
That 1864 law, passed 48 years even before AZ was admitted as the 48th official U.S. state on February 12, 1912 says in part on this subject (also cited above from that state constitution):
“A person who provides, supplies or administers to a pregnant woman, or
procures such woman to 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, shall
be punished by imprisonment in the state prison for not less than two years nor
more than five years.”
More from the article:
The Arizona Supreme Court ruled Tuesday (April 9, 2024) that the 160-year-old abortion ban may be enforced, clearing the way for a ban on almost all abortions in the state.
That 1864 ban has exceptions only to save the life of the mother but none in cases of rape or incest.
The old law supersedes Arizona's 15-week
abortion ban, which was passed by the legislature and
signed in 2022 by then GOP Gov. Doug Ducey.
That 2022 ban included exceptions in cases of medical emergencies and restrictions on medication abortion, and it requires an ultrasound before an abortion and parental consent for minors.
But the 15-week
ban did not repeal the 1864 law, the state Supreme Court found is “predicated
entirely on the existence of a federal constitutional right to an abortion,”
which was struck down with the Dobbs v. Jackson Women's Health
Organization decision by the U.S. Supreme Court in 2022.
Arizona Supreme
Court Justice John Lopez wrote in the opinion: “Absent the federal
constitutional abortion right, and because [the 15-week abortion ban] does not
independently authorize abortion, there is no provision in federal or state law
prohibiting [the 1864 abortion ban's] operation. Accordingly, [the 1864 ban] is
now enforceable.”
The Arizona Supreme Court concluded that abortion policy is a matter to be decided either by the legislature or by citizens in the ballot initiative process (Note: Now an on-going process BTW).
The court said it would not “make this weighty policy decision because such judgments are reserved for our citizens.”
Justice Lopez further wrote: “We merely follow our limited constitutional role and duty to interpret the law as written.”
The court also stayed the enforcement of the 1864 ban for 14 days, to enable the parties to return to the trial court to pursue other matters in the case.
Beyond that stay,
there's a delayed enforcement agreement in place that was signed by
former Arizona AG Mark Brnovich that effectively extends the stay
for another 45 days beyond the 14-day period.
Note: Trump said the
state Supreme Court went too far in its ruling adding:
“It's all about state's rights, and that'll be straightened out. I'm sure that
the governor and everybody else are going to bring it back into reason and
that'll be taken care of, I think very quickly.”
This is Trump on the issue of abortion that dates back many, many years. What a two-faced flip-flopper he truly is.
DEM Gov. Katie Hobbs noted that both chambers of the Arizona Legislature are controlled by Republicans.
DEM AG Kris Mayes issued a statement
saying: “The ruling is unconscionable and an affront to freedom. As long as I
am Attorney General, no woman or doctor will be prosecuted under this draconian
law in this state.”
My 2 Cents: As I said right up front that I am not a lawyer, but it seems strangely odd and maybe even unlawful for AZ to rely on this 1864 constitutional provision 48 years before they even became a legal part of the United States as a state.
So, how could a territory have a Constitution still in force and used today even before they become a valid state, and before the Civil War had ended, and while the U.S. was still under President Lincoln?
I honestly wonder what the rationale is for that.
Thanks for stopping by.
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