A Pre-Statehood Abortion Law Could Have Been Enforced Today. Arizona Voters Kept That From Happening.

The new Arizona Attorney General Kris Mayes, a Democrat, waves to the crowd after taking the ceremonial oath of office during a public ceremonial inauguration at the state Capitol in Phoenix, Thursday, Jan. 5, 2023. (AP Photo/Ross D. Franklin)

By Morgan Fischer

January 13, 2023

The new Arizona attorney general will keep restrictions on abortion from being enforced—once again proving the importance of elections.

Friday marked the day the former Arizona attorney general would have enforced a pre-statehood abortion law—but due to Arizona voters, that won’t happen. 

Mark Brnovich was attempting to get an injunction lifted against a pre-statehood 1864 law that would have essentially banned abortion in Arizona outright, as well as carry a 2-to-5-year prison sentence.

While making its way through the courts, the law was chipped away at. The Arizona Court of Appeals ruled in December that doctors could not be prosecuted under the old law, and it only applied to non-physicians, such as midwives and doulas. Brnovich could have enforced the remaining ban 45 days after the ruling, which would have been Friday. 

However, the November 2022 elections ensured that the enforcement of this law, in any iteration, will be avoided completely. 

RELATED: Gov. Katie Hobbs Wants to Eliminate Sales Tax on Feminine Hygiene Products—And Her Chances Are Looking Good.

Arizona Attorney General Mark Brnovich could not run for reelection due to term limits, but Republican nominee Abe Hamadeh promised to continue Brnovich’s legacy and maintain a hardline stance against reproductive rights. Hamadeh was beat in the November election by Democrat Kris Mayes, who has repeatedly committed to protecting women’s access to abortions. It was a narrow win, however: in a race where over 2.5 million voters weighed in, Mayes won by only 280 votes.

With Mayes as attorney general, it is very unlikely that those providing or receiving abortions will be prosecuted by her office—even after 15 weeks, as current law states. She ran on the promise to not prosecute “doctors, PAs, nurses, midwives, doulas or pharmacists for providing (abortions) or women for receiving reproductive services,” and since assuming office, has reiterated her stance on several occasions.

Before Roe v. Wade—the 1973 US Supreme Court ruling guaranteeing a federal right to abortion—was overturned last year, then-Gov. Doug Ducey signed a bill banning abortions after 15 weeks of pregnancy in Arizona. The law has no exceptions for rape or incest and only allows for abortions after 15 weeks if there is a medical emergency.

RELATED: Latinos and Young People Voted Blue to Save Democracy in Arizona

Arizonans showed their desire to keep reproductive rights protected in the state with their votes. 

Hamadeh, Mayes’ opponent, stated during his campaign that he would enforce the laws surrounding abortion, whatever they may be. This includes the 1864 near-total ban.

Voters rejected Hamadeh.

Arizonans also elected Democratic Gov. Katie Hobbs, who has been a strong and outspoken supporter of reproductive rights. 

“I refuse to stand by and do nothing as my daughter‚ or anyone’s daughter, now has fewer rights today than I did growing up,” Hobbs said during her State of the State address. In the same address, Hobbs said she would “use every power of the governor’s office to stop legislation” that would provide any restrictions on abortion.

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