Arizona Could Enact Abortion Law Written Before Statehood if SCOTUS Overturns Federal Ruling

If the U.S. Supreme Court overturns Roe v. Wade, Arizona could implement a law made before it became a state that makes abortions illegal in the state.

The law in question was in the 1901 territorial penal code, which is 11 years before Arizona gained its statehood, the Legislative Council reported.

Anyone who aids a woman in obtaining an abortion-inducing drug or performs or helps in a surgical abortion could face sentences ranging from two to five years in prison, according to the state law. The law only exempts abortions necessary to save the woman's life, the Associated Press reported.

Republican Governor Doug Ducey hopes the high court will overturn Roe v. Wade, a ruling made in 1973 that stated a woman has the constitutional right to abort her pregnancy without government intervention.

"The court needs to do its job. The court needs to follow the Constitution," Ducey said. "And when the court discovers that a mistake has been made in the past, the court has the right to correct it."

The Guttmacher Institute reported that Arizona is one of 26 states, which are all Republican-led, that will probably prohibit abortions if Roe is overturned.

Republicans that oppose abortions have argued that Roe and Planned Parenthood v. Casey, a case from 1982 that confirmed that women have the constitutional right to abort a fetus right up until it could survive outside the womb, were improperly ruled.

The high court has banned state laws that put an "undue burden" upon abortion rights before viability, which is said to be at 24 weeks. This trend has changed with three new conservative judges, pushing the court further to the right.

For more reporting from the Associated Press, see below:

Arizona, Abortion Law, Roe v. Wade
A law that predates Arizona as a state could make abortion illegal and hold those who help women obtain an abortion legally liable, sentencing them to two to five years in prison, if the U.S. Supreme Court overturns Roe v. Wade. In this photo, Arizona Republican Governor Doug Ducey addresses the media after hosting the annual Arizona State Capitol Christmas tree lighting ceremony December 1 in Phoenix. Ross D. Franklin/AP Photo

The Legislature this year repealed another pre-Roe law that subjected a woman to from one to five years in prison if she has an abortion. That section was repealed as part of a larger law making it a felony for a doctor to perform an abortion because the fetus has genetic problems such as Down syndrome. A federal judge blocked key parts of that law in September.

The judge refused to put on hold a "personhood" provision in that law that said the state will interpret all laws to confer rights on unborn children, subject to the Constitution and U.S. Supreme Court rulings. Advocates worry that the law is just another way to crimp abortion rights.

Arizona also has a 2012 law on the books that bans abortion at 20 weeks. That law was blocked by a federal appeals court and the Supreme Court refused to consider overturning that ruling.

According to the state Department of Health Services, more than 13,000 abortions were performed in Arizona last year, a number that has remained fairly constant for the past decade despite numerous new abortion restrictions enacted by the Legislature.

Julie Gunnigle, a Democrat and attorney who lost a 2020 bid for Maricopa County attorney, said the effect of banning abortions is predictable.

"We have decades of instances where that was the case and we saw that pregnant people and people who no longer wanted to be pregnant died as a result," Gunnigle said. "We know that the criminalization of abortion...has the effect of killing women and we know that it does nothing to end abortion, only safe access."

Democratic state Representative Athena Salman said women with the financial means will travel to states such as California without abortion restrictions.

"The reality of this is it's going to become your financial circumstances and your ZIP code that will determine whether or not you have access to this essential form of health care," Salman said. She said those with lower incomes and people of color, in particular, will lose access.

Republicans who control the Legislature would surely step forward to advance new legislation if the Supreme Court overturns either Roe or Casey and the pre-1973 law could not be enforced. GOP lawmakers advance anti-abortion legislation each year and Ducey has signed the bills each time they reached his desk.

Both Senate President Karen Fann and House Speaker Rusty Bowers said recently that they strongly oppose abortion and would consider new legislation. Exactly what form that takes depends on what the high court ruling says, Ducey said.

"In terms of the law, the legislation, the court, that's something for reflection on the specifics and the details," Ducey said. "What the law would look like...would, of course, depend on the Legislature, and I'd look forward to leading that session."

Arizona, Abortion Law, Roe v. Wade
The Guttmacher Institute reported that Arizona is one of 26 states, which are all Republican-led, that will probably prohibit abortions if Roe v. Wade is overturned. In this photo, participants hold signs during the Women's March "Hold The Line For Abortion Justice" at the U.S. Supreme Court on December 1 in Washington, D.C. Leigh Voger/Getty Images for Women's March Inc