Arizona high court ruling restricts killing unborn children — but may have paved the way for more liberal state abortion law

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A ruling from the Arizona Supreme Court that bans killing unborn children in nearly all cases may lead to a much more permissive abortion law, reports indicate.

The 4-2 ruling from the Arizona high court on Tuesday comes as the result of the overturning of Roe v. Wade nearly two years ago, as well as two separate abortion laws on the Arizona books.

The first law was enacted in 1864, nearly 50 years before Arizona became a state. That law made performing an abortion or helping a woman procure one a felony punishable by up to five years in jail. The law remained on the books, even after the Roe decision made abortion legal throughout the U.S. in 1973, though it was no longer enforced.

In 2022, a few months before the Dobbs decision overturned Roe, then-Gov. Doug Ducey, a Republican, signed a 15-week ban into law. However, the 15-week ban was “predicated entirely” on the federal right to abortion instituted by Roe, the state supreme court ruled this week. It also “does not independently authorize abortion.” Therefore, the 1864 law, which prohibits abortion in all cases except when the mother’s life is at risk, superseded the 2022 law, the court effectively determined.

The court initially stated that the old statute was now “enforceable” but then later delayed the implementation of its ruling for two weeks. It also sent the case back to a lower court for further clarification.

The state had already pledged not to enforce the ban for at least 45 days. Democratic state Attorney General Kris Mayes also promised that “no woman or doctor will be prosecuted under this draconian law in this state.”

Meanwhile, pro-abortion activists have already begun collecting signatures for a state referendum that would make abortion up to 24 weeks a “fundamental right.” If similar referenda in other states are any indication, the Arizona proposal will likely gain enough signatures to qualify for the ballot in November, when voters will likely approve it.

Democrats certainly seem confident that this ruling will help energize their base this year. “There is an initiative out there gathering signatures to codify abortion rights in our state, and I felt it would pass with overwhelming numbers,” said Democrat state Rep. Stephanie Stahl Hamilton. “Now, I have no doubt.”

“This decision rips away the right for women to make their own healthcare decisions with their doctors,” added U.S. Rep. Ruben Gallego, D-Ariz., who is running for U.S. Senate. “I promise you that we will fight this together. And with your help, we will win.”

Even Republicans have distanced themselves from the court’s ruling, seemingly following a cue from former President Donald Trump to neutralize the highly charged abortion issue. Kari Lake, who is running as a Republican against Gallego, claimed the 1864 law was “out of step with Arizonans.” She also promised to promote pro-life initiatives in the U.S. Senate, including those that protect IVF and make “adoption more accessible and affordable.”

Former Gov. Ducey likewise stated that the ruling was not what he “would have preferred.” “I call on our elected leaders to heed the will of the people and address this issue with a policy that is workable and reflective of our electorate,” he added.

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