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Arizona soon reverts to 1864 abortion ban that almost completely limits the procedure


A ruling by Arizona's state Supreme Court just put abortion back into national politics.


The state court finds that an abortion law passed during the Civil War is still in force today. It bans abortion in all cases, except a threat to a woman's life. An Arizona doctor who runs an anti-abortion pregnancy center asked the court to clarify that the law was still in effect. The ruling drew this reaction from Arizona's Democratic attorney general, Kris Mayes.


KRIS MAYES: By effectively striking down a law passed this century and replacing it with one from 160 years ago, the court has risked the health and lives of Arizonans.

INSKEEP: NPR political reporter Ximena Bustillo joins us now. Good morning.


INSKEEP: How does this state court ruling change the current law in Arizona?

BUSTILLO: Well, after the U.S. Supreme Court overruled Roe v. Wade, the Arizona state legislature allowed Arizona doctors to provide abortion up to 15 weeks into a pregnancy based on a lower court's interpretation of those state laws. But the state Supreme Court now says Arizona should follow a law banning abortion in almost all cases.

INSKEEP: Yeah, I was baffled by this. Like, how does the newer law not supersede the old one? But then I looked into it and realized the state law from 2022 prohibited abortions after 15 weeks but didn't guarantee a right to abortion earlier. So the court finds this older law applies, passed in 1864 by something called the First Territorial Legislature. Is that right?

BUSTILLO: Yes. So this is now one of the oldest abortion laws on the books, older than even Arizona itself. Arizona didn't become a state until 1912, and it makes no exceptions for rape or incest and makes performing an abortion punishable by two to five years in prison. But the Arizona Supreme Court has stayed the ruling for 14 business days. That means that abortions can continue for about two more weeks, and groups like Planned Parenthood, the state's biggest abortion provider, say that they plan to continue providing abortion until the ruling takes full effect.

INSKEEP: OK. So this is a court ruling, but now comes the politics. How does this affect this election year?

BUSTILLO: Well, abortion was already something we were paying attention to when it came to the Arizona election. There's an effort to place a measure on the November ballot in the state that, if passed, would also overrule the state Supreme Court decision. The amendment would establish a fundamental right to abortion and protects access to abortion up to the point of viability and to protect the patient's health and life, as determined by the treating health care provider.

INSKEEP: Is it going to get on the ballot?

BUSTILLO: Well, the amendment supporters said this month that they have more than half a million signatures already, which is far more than they need. And they plan to keep collecting until July.

INSKEEP: OK. So this is Arizona - one presidential swing state and crucial in a Senate race, by the way, as well. How are the presidential campaigns reacting?

BUSTILLO: Well, shortly after the state Supreme Court decision came down, Vice President Kamala Harris announced that she would be back in Arizona this week on Friday. She's already campaigned on abortion in Arizona recently. From the Trump campaign side, earlier this week, he came out with his own official stance on abortion. He said he didn't advocate for a national ban and instead said he would leave it up to the states to decide.

INSKEEP: Yeah, although this has been kind of awkward for Republicans who had been supportive of this 1864 law in the past, hadn't they?

BUSTILLO: Yes. In Arizona's U.S. Senate race, Republican Kari Lake said that she opposes the decision recently come down from the state Supreme Court, adding that ultimately voters will get their chance to decide in November. That's a new position for Lake. She previously praised the 1864 law when she was running for governor two years ago. Some other Republican elected officials have also criticized the ruling.

INSKEEP: OK. NPR's Ximena Bustillo, thanks so much.

BUSTILLO: Thank you. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Steve Inskeep is a host of NPR's Morning Edition, as well as NPR's morning news podcast Up First.
Ximena Bustillo
Ximena Bustillo is a multi-platform reporter at NPR covering politics out of the White House and Congress on air and in print.