Even before the Arizona Supreme Court decided that a near-total abortion ban first adopted in 1864 is the law of the land, the state had a long history with restricting access to and pursuing criminal charges against those who provide abortions.
In 1864, nearly 50 years before Arizona became a state and a year before the Civil War ended, the territorial legislature passed what is now known as ARS 13-3603.
The law states that any person who “provides, supplies or administers” an abortion “shall be punished by imprisonment in the state prison for not less than two years nor more than five years” unless it is necessary to save the life of the mother.
That law was the law of the land in Arizona for many years and after the territory became a state, was codified into state law.
A decade before statehood, Arizona further restricted abortions with a 1901 law restricting any form of advertising for abortion services. That law used the federal Comstock Act of 1873 as its basis for the law. The Comstock Act outlaws sending “obscene, lewd or lascivious” publications through the mail, and Arizona deemed abortions and contraception to fall under “obscene” material.
In 1913, a year after becoming a state, Arizona recodified the 1864 ban into state law.
Changes to Arizona’s abortion laws would not happen again for 24 years when, in 1936, the Comstock Act was challenged and a court found that it was unconstitutional, leading to Arizona’s ban on advertising abortions and contraception being deemed illegal. An appeals court ruled that advertising contraception was not “obscene,” as it aided in the health of the woman.
However, Arizona’s near total ban was still the law of the land. In 1950, Velma Nelson Morris was found guilty of providing a “criminal abortion” to a 17-year-old girl who had paid Morris for the procedure.
Planned Parenthood challenged the 1864 law in 1962 in a case that made its way to the Arizona Supreme Court. That challenge, Planned Parenthood Committee v. Maricopa County, failed when the Arizona Supreme Court ruled that the 1864 law was constitutional.
In 1971, a year after Roe v. Wade was filed, Planned Parenthood unsuccessfully challenged the law yet again; an appeals court ruled against them, upholding the law.
In 1973, the United States Supreme Court in a 7-2 decision said that women have a “fundamental right” to abortion. That prompted Arizona courts to place an injunction on Arizona’s 1864 law, keeping it from being enforced.
Despite the ruling in Roe, the Arizona legislature in 1977 recodified the language of the 1864 law to make a political point about how state leaders felt about abortion.
Arizona started making more changes to how abortions are provided in the state in 1983. The legislature that year passed a law that banned the use of fetal tissue from abortions to be used in research. Any physician or researcher found to be violating the law would face 18 months in jail and up to $150,000 in fines.
Then, in 1995, the anti-abortion advocacy group Center for Arizona Policy was founded and began advocating for further restrictions on abortions at the Arizona Capitol. Since its founding, CAP has been a persistent presence at the Capitol and has become a powerful lobbying arm of the Christian right in the state.
By 1999, lawmakers once again began to change how abortion is provided in the state, passing a law that requires abortion providers to register with the state and subjects them to certain regulations. A physician violating the law could be fined $500 and have their medical license revoked.
In 2000, GOP lawmakers passed a law requiring physicians who provide an abortion of up to 12 weeks to submit an ultrasound print to the Arizona Department of Health Services for it to review.
Later that year, a federal appeals court deemed the 1983 law banning the use of fetal tissue from abortions in research unconstitutional and prevented it from being enforced. Four years later, the law that created regulations and reporting requirements for abortion providers was also deemed unconstitutional in part by a federal court.
From 2009 onward, a slew of anti-abortion legislation was passed and signed into law by Govs. Doug Ducey and Jan Brewer. Those laws include CAP-sponsored legislation that banned partial-birth abortions, prohibited insurance for government employees from paying for abortions, disqualified abortion providers from receiving charitable tax credits and modified the ban on fetal tissue to try to comply with the court’s ruling.
In 2012, Brewer signed a law banning abortions after 20 weeks, though enforcing it was made impossible by the 1973 injunction against the near-total ban.
By 2018, the legislature moved to attempting to defund Planned Parenthood and other abortion providers by requiring them to apply for Title X funding, a move that critics argued allows for anti-abortion groups to take in funds typically used by Planned Parenthood and other providers.
The next year, a new law would go into effect requiring women who are seeking an abortion to submit detailed medical information to the state in order to obtain an abortion.
In 2021, Ducey signed a fetal personhood bill into law, igniting a court challenge and prompting a federal court to swiftly block its implementation.
Later that year, Ducey also signed a CAP bill preventing an abortion from being performed strictly on the basis of a genetic abnormality. A few months later, that bill was blocked by a federal judge who ruled that it is likely unconstitutional and conflicts with Roe.
In 2022, Ducey signed the 15-week abortion ban bill — which was also pushed by CAP — that included language declaring that it shouldn’t override the 1864 law. It was immediately challenged in court.
Three months later, the U.S. Supreme Court ruled on the case Dobbs v. Jackson Women’s Health Organization and overturned Roe, declaring that women no longer had a right to abortion. A month later, a federal court blocked Arizona’s fetal personhood bill from being put into effect.
With the Dobbs decision, then-Arizona Attorney General Mark Brnovich went to court to lift the 1973 injunction on the Civil War-era abortion ban. Three months later, a Pima County judge lifted the injunction. A month later, an appellate court put the injunction back in place. Later that year, the same appeals court ruled to allow the 15-week restriction to be enforced against doctors, leading to the case being sent to the Arizona Supreme Court.
Meanwhile, in January 2023, a federal judge reinstated Arizona’s 2021 law that bans abortions performed strictly on the basis of a genetic abnormality in light of the Dobbs ruling. Later that year, a federal appeals court allowed providers to sue the state over that bill. Recently elected Attorney General Kris Mayes refused to defend the law.
With Katie Hobbs as governor, abortion-related bills faced vetoes and a ballot initiative to codify abortion rights into the state constitution began to gain traction. After the ruling by the Arizona Supreme Court reinstating the ban, Republicans who also petitioned the Arizona Supreme Court in support of the 1864 ban are now also considering a ballot referral to compete with the Arizona for Abortion Access campaign.
Lawmakers are anticipated to address the issue in the coming weeks as the deadline for the law going into effect happens within 60 days of the court’s ruling. It is unclear if lawmakers will do an outright repeal of the law, which was blocked by Senate and House Republicans, or address the issue on the November ballot.
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