Unpacking the legal shockwave of a Civil War-era abortion law upheld by Arizona Supreme Court

For the last year and a half, women in Arizona could legally access an abortion up to 15 weeks of pregnancy. It wasn’t “optimal,” Scottsdale-based OBGYN Dr. Julie Kwatra told Salon, but at least for a vast majority of people seeking an abortion, they could access it in their state.

But this week, everything changed. On Tuesday, the Arizona Supreme Court upheld a 1864 law some are condemning as "draconian" — passed long before Arizona even achieved statehood — that will ban nearly all abortions in the state. The decision effectively supersedes the lower court’s ruling on a 15-week ban that happened in 2022. While the state’s highest court put the decision on hold for 14 days, and sent it back to the lower court to consider “additional constitutional challenges,” as it stands the law going into effect is likely imminent.  

“Whether it's in 14 days or 60 days because of some legal wrangling, we're not sure when it actually goes into effect, but it will go into effect,” Kwatra said, who also serves as legislative co-chair for the American College of Obstetricians and Gynecologists. “We just don't know exactly when.”

When the law does go into effect, it will have grave consequences for all pregnant women in the state as well as healthcare providers like Kwatra. Specifically, the law says anyone 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, shall be punished by imprisonment in the state prison for not less than two years nor more than five years.” There is no mention of an exception for rape or incest.

In other words, there is a mandatory two-year prison sentence for anyone providing an abortion or who “procures” the “miscarriage” of a “woman.” Such a strict change in access to care is causing anger and shock among both providers and patients, Kwatra said.

“For both providers and patients, I think it is the shock of how fast things can change and knowing that the practice of medicine has to change overnight and for patients, knowing that something that was available to them is completely unavailable to them overnight,” she said. “It feels cataclysmic from that end, and what I'm feeling for my patients is just a lot of anger.”

Phoenix-based criminal civil rights lawyer and constitutional law expert Robert McWhirter told Salon the highest court’s ruling will take effect after the stay. Anyone deemed to provide an abortion and any doctor that participates in an abortion will face criminal charges. He added that the law has a seven-year statute that can complicate the situation in the future. Arizona Attorney General Kris Mayes said in a statement “no woman or doctor will be prosecuted under this draconian law in this state,” as long as she is an attorney general. 

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“Even if there's Democratic politicians in power now, if a Republican politician gets in and wishes to choose to enforce that statute, they've got seven years. If something gets committed now they can prosecute it seven years from now,” McWhirter said. “So you're not gonna get prosecuted under Kris Mayes as attorney general. But after she leaves office, you could still get prosecuted for what you did whilst Kris Mayes was attorney general.”

David S. Cohen, a professor of law at Drexel Kline's School of Law, emphasized to Salon that the “conclusion” of this story “has yet to be written."

“We’ve got the attorney general saying I'm not going to prosecute, we've got the governor saying we're going to wait 45 days to implement this, and we've got the case being remanded to the trial court for constitutional claims,” Cohen said. “Patients deserve to know that this law is not going into effect immediately and continuing to be challenged.”

Cohen added that Planned Parenthood will provide abortion care up to 15 weeks of pregnancy throughout May. Like similar laws that have nearly banned abortions in other states, the ambiguity of interpreting the law is expected to affect care in life-or-death situations, despite there being an “exception for the life of the mother.”  

“It’s kind of hard to know what that means,” McWhirter said. “The doctor has one interpretation and some county prosecutor has a different opinion, and there you go, you’re going to be charged.”

McWhirter said the law doesn’t protect termination of pregnancy if a fetus has a fatal fetal anomaly, unless the pregnant woman’s life is clearly in danger. 

Kwatra said as far as she understands, she will legally be able to treat ectopic pregnancies, in which a fertilized egg implants and grows outside of the uterus in the abdomen, and has zero chance of survival. She will be able to provide standard care for miscarriage management, too.

“But in general, we know there's a really good chance that this is going to delay or deny care to patients that need it,” she said. “Where we hit the gray areas is women who come into the hospital with a wanted pregnancy, but they have an infection or ruptured membranes and as an OBGYN, we're having to deliver them with the fear of criminalization and causing an abortion.”

“Life of the mother,” Kwatra said, is a “vague construct.”

“It’s not well defined, obviously, as it was from 160 years ago,” she said. “And we should not be operating under that same law.”

Notably, a majority of people in Arizona want to protect access to abortion, previous polls have shown. Cohen said what the Arizona Supreme Court did was highly “anti democratic” and that the idea it has any reflection of what people or Arizona want today is “completely far-fetched.”

McWhirter said the Supreme Court’s opinion suggests that Civil War-era law reflects the “will of the people,” but that’s wrong. 

“No woman could vote and no woman was in the legislature that passed that statute, and the majority of persons of color could not vote. “So to say that this reflects the will of the people is just wrong.”