Arizona Supreme Court to hear arguments on 1864 abortion ban on Tuesday

arizona supreme court

By Camaron Stevenson

December 11, 2023

Arizona’s highest court will hear the first arguments Tuesday surrounding the reinstatement of an 1864 law that criminalizes abortion care of any kind, except to save the life of the mother.

Arizona currently operates under a “harmonized,” or hybrid version of the 1864 and 2022 abortion bans, meaning doctors can administer abortion care up to 15 weeks of pregnancy, with non-physicians being banned from performing the procedure completely. There are no exceptions for rape or incest, and the penalty for aiding with an abortion is a minimum two-year prison sentence.

Should the Arizona Supreme Court decide to fully reinstate the 1864 law, abortion services will be banned in every instance, unless the procedure is needed as a life-saving measure on behalf of the mother.

“It is insane and ridiculous to even think about the idea that we could subject the women—and the men for that matter—of Arizona to a ban that was crafted when women couldn’t vote,” Arizona Attorney General Kris Mayes told The Copper Courier. “Arizona wasn’t a state, and the Civil War wasn’t over yet. And yet that is literally what is being proposed by the far right. We’re going to fight that to the very end.”


Anti-abortion Arizona Supreme Court Justice recuses himself from hearing upcoming abortion ban case. .. . . . . . #aznews #azpol #azabortion #abortionrights #reprorights #everythingarizona #arizonanews #arizonapolitics

♬ original sound – Copper Courier

Attorney general’s role

The 1864 ban was championed under former Attorney General Mark Brnovich, a Republican, who set the wheels in motion to reinstate the total abortion ban in July 2022. Enforcement of the ban had been blocked in 1973, when the US Supreme Court ruled to protect abortion care as a constitutional right in Roe v. Wade. When the current Supreme Court reversed Roein June 2022, Brnovich argued that meant the 1864 ban should be enforced.

Lawsuits for and against a plethora of abortion bans have made their way through various courts in the 18 months since, resulting in the harmonized 15-week abortion ban and the current case before the state Supreme Court. But Brnovich’s tenure ended in January 2023, and Mayes, his successor, has made it clear that her stance on abortion care is night and day from that of her predecessor.

“I am going to send the best lawyers in the state of Arizona to the Supreme Court to argue against the reinstatement of that 1864 ban,” Mayes said.

Enforcing the ban

In addition to arguing against the abortion ban, Mayes has made clear she has no intention to enforce any criminal charges for abortion services. Currently, the Office of the Arizona Attorney General is the only body that has the authority to enforce restrictions against reproductive healthcare, rendering the bans obsolete as long as the order remains in effect.

In June, Democratic Gov. Katie Hobbs issued an executive order consolidating all “abortion-related criminal prosecutions” under Mayes’ office, meaning county attorneys or other criminal litigators have no authority to charge patients or providers for breaking the state’s restrictive abortion laws.

“I will not allow extreme and out-of-touch politicians to get in the way of the fundamental right Arizonans have to make decisions about their own bodies and futures,” Hobbs said in a statement. “I will continue to fight to expand access to safe and legal abortion in any way that I can.”

After the executive order was issued, 12 of Arizona’s 15 country attorneys issued a joint letter asking the governor to rescind the order so they could prosecute abortions. Hobbs did not, and Mayes confirmed that, since that time, no county attorney in the state has attempted to go against Hobbs’ order and prosecute an abortion.

What happens next

Oral arguments before the Arizona Supreme Court begin at 9:30 a.m. on Tuesday and can be viewed via livestream on the Court’s website. A ruling may take several months.

If the ban is enacted, Mayes’ office has no plans to enforce it, but its existence alone is expected to have a chilling effect on providers—including medical professionals who are opting not to work in states with restrictive reproductive laws.

Regardless of the court’s decision, abortion rights groups are working on another avenue to protect reproductive rights in the state. Advocates have begun collecting signatures for a ballot proposition to amend the Arizona Constitution to make abortion access a protected right in the state.

If they get enough signatures to place the measure on the Nov. 2024 ballot and voters approve it, their effort would restore and expand the reproductive rights that were removed when the US Supreme Court overturned Roe last year.

Those interested in signing the petition or volunteering with Arizona for Abortion Access can find more information on their website.


Arizona abortion rights groups came together Thursday to announce that they would begin the monumental task of collecting over 500,000 signatures from voters in favor of protecting abortion access in the state constitution. Our video correspondent @playboymanbaby explains… To learn more, click the link in bio. . . . . . . #aznews #arizonanews #arizonapolitics #azpol #azleg

♬ original sound – Copper Courier – Copper Courier


  • Camaron Stevenson

    Camaron is the Founding Editor and Chief Political Correspondent for The Copper Courier, and has worked as a journalist in Phoenix for over a decade. He also teaches multimedia journalism at the Walter Cronkite School of Journalism and Mass Communication at Arizona State University.


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