Civil War-era abortion ban rises again, which is exactly what some Roe opponents wanted

Analysis by Zachary B. Wolf, CNN

(CNN) — It’s jarring to think that Arizonans today – thanks to a new state Supreme Court ruling – will soon be living under an abortion law from when Arizona was a frontier territory and that predates the light bulb and antibiotics.

But this is actually exactly the type of law that Supreme Court Justice Samuel Alito referred to in the majority opinion overturning Roe v. Wade in 2022.

“Roe’s failure even to note the overwhelming consensus of state laws in effect in 1868 is striking,” Alito’s majority wrote, noting the year the 14th Amendment was ratified. It was under the 14th Amendment that the court in 1973 created a woman’s constitutional right to obtain an abortion until a fetus was viable outside the mother’s womb. It was in citing laws like that of the Arizona frontier that the court in 2022 took that national right away.

Civil War-era laws were an important part of the Dobbs decision

Laws from the 1860s in states and territories like Arizona, enacted decades before women in the US had won the right to vote, helped lead the 2022 Supreme Court to the “inescapable conclusion … that a right to abortion is not deeply rooted in the Nation’s history and traditions.”

And so, with the Dobbs v. Jackson Women’s Health Organization decision that replaced Roe, justices turned away from the ’70s idea that women should have certain rights and returned to the 1860s idea that states should have them instead.

The patchwork of access created by the Dobbs decision has created abortion rights states and abortion ban states. The decision by Arizona’s state Supreme Court to return to the 1864 law is just the latest evidence of the tortured fallout.

Trump: let the states decide

The patchwork approach to abortion access was blessed this week by former President Donald Trump when he promised to stay out of states’ way if reelected.

He may have been trying to neutralize what will be a top political issue in the coming presidential election and also in individual states like Arizona. Whatever states decide, Trump said, “must be the law of the land. In this case, the law of the state.”

Arizona’s entirely Republican-appointed Supreme Court upheld the old law because the state legislature “has never affirmatively created a right to, or independently authorized, elective abortion,” but it stayed the decision for 14 days.

‘Dark day’

Now, the state’s Republican-controlled legislature could try to find common ground with its Democratic governor, Katie Hobbs, who said the abortion decision made Tuesday “a dark day in Arizona.” She called on Republicans in the legislature to simply repeal the 1864 law.

But the state House and Senate leaders, Ben Toma and Warren Petersen, are both supporters of the 1864 law and were active in this court case.

What is the law in Arizona now?

The 1864 law in Arizona would ban nearly all abortions, except to save the life of the mother, in the key political battleground and carries a prison sentence for abortion providers, although the state’s Democratic attorney general said in a statement that her office will not enforce it. Read the full report on Tuesday’s ruling from CNN’s Cindy Von Quednow, Christina Maxouris and Lauren Mascarenhas.

One further complication in Arizona is that a Republican-controlled legislature and former Republican governor, Doug Ducey, actually enacted a 15-week abortion ban law in 2022, a few months before the Supreme Court overruled Roe, although they did not intend that 15-week ban to overrule the older law.

Abortion was already going to be a key political issue

In Arizona, supporters of abortion rights say they have gathered enough signatures for a November ballot measure to amend the state’s constitution and create a “fundamental right” to abortion in the state modeled on Roe v. Wade.

Abortion will also feature on the ballot in at least one other battleground state, Florida, where the state’s Supreme Court recently upheld a ban on abortions after six weeks of gestation that was signed into law by the state’s Republican Gov. Ron DeSantis.

Voters will have the opportunity to overturn DeSantis and the Republican legislature on the abortion issue in November. In Arizona, voters would essentially be given the choice of overturning their frontier forebears.

Women’s health advocates are warning of more immediate repercussions in both states as women face the prospect of suddenly losing access to care.

The abortion issue divides Republicans in Arizona and nationally. While the state House and Senate leaders support the 1864 law, Kari Lake, the controversial Republican Senate candidate, said her campaigns have shown her that Arizonans want a more modern law. She called on Toma and Petersen to work with Hobbs to repeal it – despite having previously praised the measure in a 2022 podcast, calling it a “great law.”

Nationally, Trump lobbed criticism at his normal ally South Carolina Sen. Lindsey Graham, who criticized the former president for not endorsing Graham’s call for a nationwide 15-week abortion ban.

Neither a nationwide ban nor nationwide abortion rights protections seem likely to pass in the near future, as long as senators honor the custom that a 41-senator minority can block major legislation in the 100-person Senate. Democrats, nonetheless, are hoping to use the abortion rights issue to mobilize voters in November.

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