PIMA COUNTY, AZ – On September 23rd, an Arizona judge ruled that the state’s abortion ban law dating back to 1864 can be enforced, meaning that the vast majority of abortions are now outlawed within Arizona and could result in criminal prosecutions if performed.
Arizona’s first ban on abortions came in the form of a set of civil and criminal laws in 1864 under what was referred to as the “Howell Code,” which performing any act to intentionally induce a miscarriage/abortion unless specifically done “in order to save [the mother’s] life” could result in up to five years in prison.
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Flash forward to 1901, prior to Arizona achieving statehood, the then-existent Arizona Territorial Legislature further codified this anti-abortion law via an anti-obscenity law that banned the advertising and administering of both abortions and contraceptives.
This pre-statehood codification in furtherance of outlawing abortions was enacted under the authority of the Federal Comstock Act of 1873. A portion of the federal law was challenged in the 1936 case of United States v. One Package, where the U.S. Court of Appeals for the Second Circuit determined that contraceptives being administered to women for their health and wellbeing were not obscene materials.
As a result, this 1936 ruling regarding the Federal Comstock Act rendered Arizona’s portion of the 1901 law with respect to contraceptives nearly unenforceable – but the abortion ban was still in effect up until 1973 when the Supreme Court decision on Roe v. Wade.
Following the landmark SCOTUS decision from nearly 50 years earlier, an injunction was placed barring enforcement of Arizona’s abortion ban, but the SCOTUS decision from this past summer put an end to federal protections/guarantees for abortion.
In the wake of Roe v. Wade being overturned, Arizona Attorney General Mark Brnovich asked the courts this past August to lift the 1973 injunction lodged against the pre-statehood law banning abortion, arguing that since Roe v. Wade is no longer precedent, the core reason for the 1973 injunction is absent.
In a September 23rd ruling on the matter, Pima County Superior Court Judge Kellie Johnson found the argument compelling, noting in her ruling, “The court finds that because the legal basis for the judgment entered in 1973 has now been overruled, it must vacate the judgment in its entirety.”
State AG Brnovich was obviously pleased with the outcome in the case, issuing a brief statement that read, “We applaud the court for upholding the will of the legislature and providing clarity and uniformity on this important issue. I have and will continue to protect the most vulnerable Arizonans.”
However, while the Arizona abortion ban criminalized all abortions with the exception of cases where they are performed to preserve the life of the mother, some critics argue therein lies too much ambiguity as to when a mother’s life could be considered “in danger” regarding the law.
Appeals are expected to come regarding the court’s ruling on allowing the abortion ban to go into effect, but in the meantime, one can expect for operations like Planned Parenthood to cease abortions-on-demand lest they want to tempt legal ramifications.
This piece was written by Gregory Hoyt on September 24, 2022. It originally appeared in RedVoiceMedia.com and is used by permission.
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