How the return of a 160-year-old Arizona abortion ban law poses a threat to doctors
Q: How can a 160-year-old law that bans abortions and punishes doctors be valid?
A: When the U.S. Supreme Court determines that a state law is inconsistent with the requirements of the U.S. Constitution, it can go through judicial review and strike down that law. In Roe vs. Wade (1973), the Supreme Court (7-2) struck down a Texas law making most abortions in that state illegal. The Court found that the U.S. Constitution includes a right to privacy, which encompasses the right of women to make their own decisions on whether to end a pregnancy prior to fetal viability.
This stopped other states from enforcing laws that prohibited abortion prior to viability including the 1864 territorial law in Arizona A.R.S. (§ 13-3603) that punishes any 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.”
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Essentially, in Roe, the Supreme Court decision took the issue from the states and created a national standard which was based on a right derived from the Constitution and thus outside the ability of legislators at the state or federal level to ban. However, in Dobbs v. Jackson (2022), the Supreme Court (5-4), reversed that precedent and found that “[t]here was no support in American law for a constitutional right to obtain an abortion.”
As a result, the question of how and when to regulate abortion was returned to the states, and potentially the federal government. It also means that laws which were not valid under Roe, may be legal and essentially spring back into being. Twenty-one states had restricted abortion earlier in pregnancy than the standard in Roe. Unless there were changes in state law, those states may now ban abortions at some or all stages of pregnancy.
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The Arizona case raised the issue of whether subsequent legislation may be interpreted to change the application or enforcement of the 1864 law. It was argued that a 2022 Arizona Law which placed a limit on abortions after fifteen weeks of pregnancy (except for medical emergencies) replaced the total ban. In 2022, an Arizona Appellate Court found that both laws could co-exist as the 1864 law only applied to non-doctors while the more recent restrictions would allow medical professionals to act within the established time period or for emergencies.
The Arizona Supreme Court reversed and held that 1864 abortion ban was still valid. The court declared the legislature did not create an independent right to abortion under state law when it enacted the 15-week ban. Ultimately, in the absence of a federal rule or law, states will be able to set their own standards or apply ones from older statutes that were not repealed.
Kevin Wagner is a noted constitutional scholar and political science professor at Florida Atlantic University. The answers provided do not necessarily represent the views of the university. If you have a question about how American government and politics work, email him at kwagne15@fau.edu.
This article originally appeared on Palm Beach Post: Revival of 1864 Arizona abortion law punishing Doctors and women
