Arizona Supreme Court Pauses 1864 Abortion Ban to Allow Appeal

An 1864 Arizona law criminalizing nearly all abortions will be paused through the summer, the state’s top court ordered Monday in a move allowing the state’s attorney general to bring the case to the US Supreme Court.

The Arizona Supreme Court decided to stay the Civil War-era law, which had been expected to go into effect in June, until after Aug. 12 to give Arizona Attorney General Kris Mayes (D) time to file a petition with the US high court. Mayes is considering requesting a review of the Arizona Supreme Court’s April 9 ruling that allowed the 1800s law to replace the state’s current 15-week abortion ban.

At the same time, the state’s top court on Monday denied a motion by Planned Parenthood Arizona Inc. requesting that no one be prosecuted under the 1864 abortion law before its repeal goes into effect.

The Arizona legislature voted May 1 to repeal the 1864 law, which Arizona Gov. Katie Hobbs (D) signed the following day. The repeal, however, won’t take effect until 90 days after the state legislative session’s end, which has been delayed by ongoing budget negotiations.

The state court’s order comes after abortion providers and reproductive health groups warned of the chilling effect the 1864 law would have on care in the state, forcing Arizona patients to travel to California or other surrounding states to receive abortion care.

Mayes said in a statement that she was “grateful” for the state supreme court’s order. She argued that with the 90 days granted by the state court, plus the 45 days stipulated in a separate case, the earliest the 1800s law could take effect is Sept. 26.

“During this period, my office will consider the best legal course of action to take from here, including a potential petition for certiorari to the U.S. Supreme Court,” Mayes said, adding she believes “this case was wrongly decided, and there are issues that merit additional judicial review.”

Alliance Defending Freedom, which represents anti-abortion doctor Eric Hazelrigg in the case, said in an emailed statement that “life is a human right, and Arizona’s pro-life law respects that fundamental right.”

“Though the court paused its judgment, we will continue working to protect unborn children and promote real support and health care for Arizona families,” ADF Senior Counsel Jake Warner said.

Coppersmith Brockelman PLC and Planned Parenthood Federation of America represent Arizona’s Planned Parenthood affiliate.

Planned Parenthood has received funding from Bloomberg Philanthropies, the charitable organization founded by Bloomberg Law owner Michael Bloomberg.

The case is Planned Parenthood Ariz., Inc. v. Mayes, Ariz., No. CV-23-0005-PR, 5/13/24.