Tweet Share Share Comment On Tuesday, the Arizona Supreme Court ruled that its total abortion ban, a seemingly dead law dating back to 1864, is once again enforceable, despite more recent legislation that seemed to supercede it. The zombie ban makes virtually all abortions a felony, imposing a prison sentence of two to five years for any provider. There is no exception for rape or incest. The law was enacted before women could vote, and was long presumed to be permanently unenforceable. But the Arizona Supreme Court’s conservative majority, by a 4–2 margin, has now revived it. Republican governors appointed all seven justices on the bench, and the GOP recently expanded the court to entrench this far-right majority—which had no trouble finding that a ban enacted in an era in which women were chattel remains good law in 2024. As a result of this ruling, in 14 days almost every abortion in Arizona will be a crime, and nearly every clinic will close its doors. For all intents and purposes, it’s 1864 again for pregnant people in Arizona.
The decision should serve as a warning for the rest of the country, in light of ongoing efforts to revive the Comstock Act: In the hands of a far-right court, a dead, openly misogynistic, wildly unpopular abortion ban can spring back to life with a vengeance.
This zombie law was passed in 1864, long before Arizona was a state, and was codified in 1901, at which point it included a narrow exception to save the patient’s life. Much more recently, Arizona has passed less restrictive abortion laws, including a 15-week ban that appeared to wipe out more severe bans that preceded it. In late 2022, after the Supreme Court overturned Roe v. Wade, the Arizona Court of Appeals ruled that the two conflicting abortion laws in the state had to be reconciled, or “harmonized.” It maintained that abortion would remain legal through 15 weeks when provided by licensed physicians in compliance with the state’s other laws.
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Read More But on Tuesday, the Arizona Supreme Court, tasked with finally “harmonizing” Arizona’s 15-week abortion ban with the total ban dating back to hoop skirts, ruled that in the aftermath of Roe’s reversal in Dobbs, the total ban takes precedence: The more recent 15-week restriction, wrote the majority, “does not create a right to, or otherwise provide independent statutory authority for, an abortion that repeals or restricts” the 1864 law, “but rather is predicated entirely on the existence of a federal constitutional right to an abortion since disclaimed” by Dobbs. In other words, in “harmonizing” the two laws, the harsher one wins out—even though, as the dissenters noted, the Legislature seemed to override this absolute ban when passing the recent 15-week limit. And so, starting in two weeks, even rape victims at the earliest stage of pregnancy may not obtain a legal abortion in Arizona.
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Since Dobbs, nearly two dozen states have banned or limited access to the procedure. Arizona now joins those states with almost no exceptions, according to the Guttmacher Institute. As was the case with the far-right Florida Supreme Court’s interpretation of that state’s constitution last week, the majority simply ignored any evidence that the original meaning and text of the recent law provided greater protections for reproductive freedom. Instead, the majority rejected the Legislature’s evident intent to supplant the Civil War–era law with a more lenient ban. As a consolation, it gestured toward the fact that Arizona voters will likely have an opportunity to enact a ballot initiative restoring reproductive rights. So Arizona now joins Florida as a state in which the high court takes away reproductive freedom with one hand while allowing it to go to a popular vote with the other. Abortion-rights groups say they have enough signatures to put the abortion amendment on the November ballot, creating a fundamental right to receive abortion care until viability. Unlike Florida, where amendments need 60 percent approval to pass, Arizona allows amendments to take effect with simple majority support. (Note, as well, that two justices in the majority on Tuesday have retention elections in November; if ousted, Democratic Gov. Katie Hobbs can replace them with progressives.)
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In an election year in which winning the state of Arizona is an absolutely essential factor for the GOP, the abortion dog continues to catch the electoral car in ways that can only hurt Donald Trump and the GOP extremists who seek to harm women’s health and equality. So long as voters are aware of the game as it’s being played and what the stakes will be, Republicans faces the potential for heaving losses. So these efforts to do that which is extraordinarily unpopular must happen via subterfuge, wink-wink nudge-nudge public statements about states’ rights and not taking a national position on abortion, while the courts and would-be Trump administration functionaries do all the quiet dirty work. The self-evident tension between the massive public rebuke of Dobbs—in the form of state ballot initiatives and referenda, local special elections, and state Supreme Court races—and the unabating efforts by rogue legislatures and fringe Supreme Courts to roll back abortion rights, was in evidence with Donald Trump’s refusal to state a coherent position on abortion on Monday: Turning back the clock for women is a demonstrably losing issue at the ballot box. And when candidate Trump says he wants to return the issue of abortion to the states, what he is really saying is that Arizona is free to return the issue to the time before doctors understood the value of hand-washing. (Also, why would anyone take his word on anything, ever?)
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What happened in Alabama in February, in Florida last week, and in Arizona on Tuesday makes it clear that returning the reproductive freedom landscape to the Victorian age requires subverting whatever happens in elections. That’s why this massive rollback will be achieved by antidemocratic measures, including promises to breathe new life into the Comstock Act, and revanchist theocratic decisions from courts attempting to do away with IVF and rape exceptions in the name of fetal and embryonic personhood.
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Comstock, in particular, is an instructive comparison here. That 1873 law, read expansively, bans all abortions, including both medication and in-clinic procedures. Indeed, far-right lawyers are at the Supreme Court trying to weaponize it against abortion pills right now. Trump’s top lawyers, including Jonathan Mitchell, have said that they plan to use Comstock as a nationwide ban on abortion if Trump regains office. They tell us that they intend to stay quiet about this scheme until after the election, at which point they will prepare for an executive order accompanied by prosecutions and regulations that make abortion a federal felony in all 50 states. The plot is similar to what just happened in Arizona: Republicans enacted a seemingly moderate 15-week ban, only to stand by and watch as their colleagues on a GOP-packed court resuscitated a total ban passed during the Civil War. Democratic Attorney General Kris Mayes—who beat her anti-abortion opponent in 2022 by 280 votes—has said she won’t prosecute violations of the law. But GOP county attorneys have rejected Mayes’ efforts to shield doctors and may well seek to charge any providers that stay open, throwing access into immediate jeopardy.
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The next time someone tells you they really worry about abortion rights, but that President Biden is just too old, please gently remind them that Joe Biden is not, in fact 160. That is the age of the law that will soon be sending abortion providers to prison in Arizona if they attempt to assist a victim of rape or incest. If edgy modernity is truly your thing, be afraid of Republican judges who are at war with modernity itself; they will gladly welcome the assistance of pro-choice voters whose apathy facilitates the rollback of women’s equal citizenship. And it’s now abundantly clear that we’re not rolling back the tape to the 1970s or to the 1920s. The project is to set your clocks back to the time when women didn’t even matter enough to have a vote.
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Arizona’s Zombie Abortion Ban Is Back. It’s Every State’s Future If Trump Wins.
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Tweet Share Share Comment On Tuesday, the Arizona Supreme Court ruled that its total abortion ban, a seemingly dead law dating back to 1864, is once again enforceable, despite more recent legislation that seemed to supercede it. The zombie ban makes virtually all abortions a felony, imposing a prison sentence of two to five years for any provider. There is no exception for rape or incest. The law was enacted before women could vote, and was long presumed to be permanently unenforceable. But the Arizona Supreme Court’s conservative majority, by a 4–2 margin, has now revived it. Republican governors appointed all seven justices on the bench, and the GOP recently expanded the court to entrench this far-right majority—which had no trouble finding that a ban enacted in an era in which women were chattel remains good law in 2024. As a result of this ruling, in 14 days almost every abortion in Arizona will be a crime, and nearly every clinic will close its doors. For all intents and purposes, it’s 1864 again for pregnant people in Arizona.
The decision should serve as a warning for the rest of the country, in light of ongoing efforts to revive the Comstock Act: In the hands of a far-right court, a dead, openly misogynistic, wildly unpopular abortion ban can spring back to life with a vengeance.
This zombie law was passed in 1864, long before Arizona was a state, and was codified in 1901, at which point it included a narrow exception to save the patient’s life. Much more recently, Arizona has passed less restrictive abortion laws, including a 15-week ban that appeared to wipe out more severe bans that preceded it. In late 2022, after the Supreme Court overturned Roe v. Wade, the Arizona Court of Appeals ruled that the two conflicting abortion laws in the state had to be reconciled, or “harmonized.” It maintained that abortion would remain legal through 15 weeks when provided by licensed physicians in compliance with the state’s other laws.
Advertisement Advertisement Advertisement Advertisement Related From Slate
Barbara Pariente
I Served on the Florida Supreme Court. What the New Majority Just Did Is Indefensible.
Read More But on Tuesday, the Arizona Supreme Court, tasked with finally “harmonizing” Arizona’s 15-week abortion ban........
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