Democrat Arizona AG Says She Will Not Enforce 1864 Law Banning Most Abortions

Kris Mayes speaks at a Democratic rally in Phoenix, Wednesday, Nov. 2, 2022. On Tuesday, M
Alberto Mariani, File/AP
Katherine Hamilton

Arizona’s Democrat Attorney General says she will not enforce an 1864 law that was upheld by the state Supreme Court on Tuesday banning nearly all abortions. 

“The decision made by the Arizona Supreme Court today is unconscionable and an affront to freedom. Make no mistake, 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,” Arizona Attorney General Kris Mayes (pictured above) said in a statement. “The Arizona Court of Appeals decision, which the Supreme Court has struck down [on Tuesday], was well reasoned and aligned with how courts harmonize different legislation.”

Mayes’ statement continued:

[The] decision to reimpose a law from a time when Arizona wasn’t a state, the Civil War was raging, and women couldn’t even vote will go down in history as a stain on our state. This is far from the end of the debate on reproductive freedom, and I look forward to the people of Arizona having their say in the matter. And let me be completely clear, as long as I am Attorney General, no woman or doctor will be prosecuted under this draconian law in this state.

The 1864 law bars all abortions except to save the life of the mother and also carries a sentence of two to five years for abortionists. Justices heard arguments in the case, Planned Parenthood of Arizona v. Mayes/Hazerigg, in December, and were asked to answer whether Arizona’s 15-week abortion limit passed in March of 2022 overrides the older law.

While the court did not rule on the constitutionality of the 1864 law, it issued a 4-2 decision with one recusal on Tuesday, finding that the 1864 law is “enforceable” over the newer 15-week limit.

“We consider whether the Arizona Legislature repealed or otherwise restricted [the old law] by enacting … the statute proscribing physicians from performing elective abortions after fifteen weeks’ gestation,” Justice John Lopez wrote for the majority opinion. “This case involves statutory interpretation—it does not rest on the justices’ morals or public policy views regarding abortion; nor does it rest on [the old law’s] constitutionality, which is not before us.”

“Absent the federal constitutional abortion right, and because [the fifteen-week limit] does not independently authorize abortion, there is no provision in federal or state law prohibiting [the 1864 law’s] operation. Accordingly, [the 1864 law] is now enforceable,” Lopez continued.

The Arizona Supreme Court ultimately affirmed a lower court’s decision vacating an injunction against the near-total ban but stayed the total enforcement of the law for 14 days to allow for parties to decide how to pursue further action. The state’s high court also remanded the case to trial court for potential consideration of remaining constitutional challenges.

RELATED: Democrats Tee Up Abortion Until Birth After Arizona Supreme Court Follows Law as Written

The Arizona Supreme Court ruling on Tuesday came after Donald Trump revealed his stance that states should ultimately decide on the issue of abortion. Trump told reporters on Wednesday that he thinks the 1864 law goes too far.

“It’s all about state’s rights, and that’ll be straightened out,” Trump said. “I’m sure that the governor and everybody else are going to bring it back into reason and that’ll be taken care of, I think very quickly.”

Some prominent Arizona Republicans have notably distanced themselves from the Arizona Supreme Court’s rulings, including Senate candidate Kari Lake and former Gov. Doug Ducey. Other state Republicans have so far blocked efforts to repeal the law.

RELATED: Donald Trump Reveals Abortion Position, Says States Should Decide

The state supreme court decision comes as pro-abortion activists are moving forward with a proposed amendment that would create a constitutional right to abortion in Arizona.

Arizona for Abortion Access — a coalition of groups including ACLU of Arizona, Affirm Sexual and Reproductive Health, Arizona List, Healthcare Rising Arizona, NARAL Arizona, and Planned Parenthood Advocates of Arizona — said last week that they had amassed more than 500,000 signatures, well past the 383,923 required for the proposed amendment to qualify for the ballot in November. If the abortion measure makes it on the November ballot, it will need a simple majority to pass.

Arizona is one of nearly a dozen states where pro-abortion activists are working to codify the right to kill the unborn.

(Photo by © Jacques Pavlovsky/Sygma/CORBIS/Sygma via Getty)

Katherine Hamilton is a political reporter for Breitbart News. You can follow her on X @thekat_hamilton.

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