Arizona revived a law from 1864 to ban nearly all abortions. A law from 1873 could do the same at the national level

Good morning, Broadsheet readers! The women's basketball NCAA tournament officially outshone the men's, Jessica Alba is stepping down as chief creative officer of The Honest Company, and Arizona revives a 160-year-old abortion ban. Take care this Wednesday.

- Back on the books. Arizona's Supreme Court yesterday ruled that a 160-year-old near-total abortion ban is, in fact, law. The shocking ruling is unique from the other bans we've seen since the 2022 overturn of Roe v. Wade; rather than rely on a "trigger law" or new legislation, this one revives a law that dates back to 1864—48 years before Arizona even became a U.S. state.

Arizona's ban, codified in 1901, criminalizes nearly all abortions in the state and was never repealed following 1973's Roe v. Wade decision, allowing a court to put it back on the books yesterday. It includes exceptions only for the life of the mother, which The 19th reports is difficult for physicians to rely on in practice, and carries criminal penalties including two-to-five year prison sentences for providers. Previously, Arizona had a 15-week abortion ban in place, which, while restrictive, allowed access for the period of time in which most abortions happen. The court's decision provides 14 days until the law goes into effect to allow for for lower court challenges.

What's scariest about this ruling, however, is what it suggests might lie ahead for abortion nationwide. If Arizona's top court can declare that a law that predates the state itself still applies to its 7.4 million residents in 2024, will federal lawmakers decide the same? Bubbling in the background of changing abortion legislation is the Comstock Act, an 1873 anti-obscenity law that can be interpreted as banning nearly all abortions. Abortion opponents have said they plan to use it in the fight to restrict the procedure nationwide. Read more about the Comstock Act and its role in federal anti-abortion strategy in this Slate story.

Just this week, former President Donald Trump, whose position on abortion has wildly varied over his life and political career, said that abortion will be "left to the states," which was interpreted by some as a lack of support for a nationwide abortion ban. But what's happening at the state level informs what could happen at the national level with a possible GOP administration next year.

Arizona's Democratic Gov. Katie Hobbs called the court's decision "unacceptable" and a "dark day" for Arizonans. Arizona Attorney General Kris Mayes vowed not to prosecute providers or people who receive abortions, even with the law in place. After all, Mayes said, the law is from a time when "the Civil War was raging, and women couldn’t even vote." This time around, at least women have the right to make their voices heard at the polls—and Arizona voters will likely have the chance to say where they stand on abortion on the November ballot.

Emma Hinchliffe
emma.hinchliffe@fortune.com

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