Abortion This article is more than 1 month oldArizona court weighs 1864 abortion ban that risks ‘conditions of misery’
This article is more than 1 month oldAfter months of disarray over the legality of abortion, the state supreme court will decide whether to reinstate ‘zombie’ ban
Dr Gabrielle Goodrick can barely bring herself to talk about the weeks when Arizona banned abortion.
In the months after the US supreme court overturned Roe v Wade, abortion flickered in and out of legality in Arizona as state courts attempted to interpret a long-dormant 19th-century abortion ban that was suddenly relevant again. Goodrick, a longtime abortion provider in Phoenix, was forced to cancel patients’ appointments, then desperately try to reschedule them during the brief period of time when the procedure became legal again. Patients sometimes showed up at the clinic for their appointment, were turned away, and sobbed outside the clinic. Stressed-out staffers quit, but given all the uncertainty, Goodrick couldn’t hire new ones. She had to keep going with too few employees.
“It destroyed clinics. It’s very hard to function when you don’t know what’s gonna happen,” Goodrick said. “The idea of that happening and losing the staff I have and not being able to see the patients that need us – it’s just – I don’t know, really. I really can’t go there.”
On Tuesday, the Arizona state supreme court will hear arguments in a case over whether to reinstate an abortion ban that originated in 1864, before Arizona even became a state. The ban blocks people from helping to “procure the miscarriage” of a pregnant woman and only allows abortions to save her life. There are no exceptions for rape or incest.
Other states, like Texas and Wisconsin, have recently tried to revive pre-Roe abortion bans, often referred to as “zombie bans”. But Arizona’s ban has been mired in more legal uncertainty than most other states’. In addition to host of other abortion regulations, Arizona had on the books both the 1864 ban – which was initiated under Arizona’s pre-state territorial government, then updated and codified in 1901 – as well as a ban on the procedure past 15 weeks, which was signed into law in 2022.
Barbara Atwood, the director of the Family and Juvenile Law Certificate Program at the University of Arizona James E Rogers College of Law, said that Arizona’s revival of a law that has gone unenforced for half a century would be “unprecedented”.
“There’s a huge regulatory structure that’s been enacted in the last 50 years post-Roe v Wade, where the Arizona legislature has very deliberately created lots of restrictions on the availability of abortion,” Atwood said. “If the old ban is brought back into effect, how it meshes with this other regulatory structure is very, very confusing.”
After Roe was overturned, no one seemed to know for sure if the 1864 ban was in effect – not even Arizona’s then governor, who said that the 15-week ban superseded the 1864 ban, or its former attorney general, who threw his weight behind the 1864 ban. Those officials, both Republican men, have since been replaced by Democratic women.
Dr DeShawn Taylor, who runs an abortion clinic in Phoenix, Arizona, said her staffers were terrified and confused. “I’m a Black woman,” she told them. “Do you think I want to go to jail? I wouldn’t put myself at risk. I don’t want to put you at risk.”
Out of an abundance of caution, most of the state’s abortion providers stopped performing the procedure right after Roe’s overturning. Taylor was so unsure of what “procure” meant that she started giving patients their medical records outright, rather than referring them herself to another abortion provider out of state, because she feared that doing so could accidentally violate the ban.
To have people be forced to continue pregnancies and bear children without the resources to help – I just think we’re creating conditions of miseryDr DeShawn TaylorAmid the confusion, some Arizona abortion providers resumed work in July 2022 . But in September, a court reinstated the 1864 ban. For about two weeks, until a state appeals court order halted the ban, abortion providers were once again unable to offer the procedure.
What is clear is that abortions are currently outlawed past 15 weeks in Arizona. A near-total ban, Taylor said, would push pregnant people in the state to a breaking point.
“We have an exploding homeless and drug-using population here,” Taylor said. She added that she was starting to see people terminate pregnancies they would otherwise keep out of fear of something going wrong later in pregnancy when an abortion would not be legal. “To have people be forced to continue pregnancies and bear children without the resources to help – I just think we’re creating conditions of misery.”
The consequences of a near-total ban in Arizona could also reverberate across the south-west. While most of Goodrick’s patients are from Arizona, she estimates that about 10 to 20 Texans come to her clinic each month for abortions.
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Planned Parenthood, a party in the lawsuit over the 1864 ban, has argued that the pre-statehood ban clashes with Arizona’s other abortion regulations and that the courts need to “harmonize” the state’s laws around abortion. The abortion provider already scored a surprising win in the case in late November.
One of the justices who was originally set to rule on the 1864 ban, Bill Montgomery, said in a 2017 Facebook post that Planned Parenthood “is responsible for the greatest genocide known to man”, the Phoenix New Times reported in 2019. Montgomery has also said that abortion should only be allowed when a pregnancy threatens someone’s health or life and that the “unborn are entitled to the same degree of protection as anyone else”.
Montgomery initially declined to recuse himself from the case. The statements were made before he became a member of the state supreme court, he said in court papers. However, days later, he changed his mind.
“Additional information related to the parties and respective counsel has come to my attention warranting that I recuse myself from any further deliberations in this matter,” he wrote in court papers.
“That’s a significant victory for our friends at Planned Parenthood, and for anyone in the state who is providing care in the state and all the patients that need to access care, to not have a biased judge on the court hearing them on 12 December,” said Caroline Mello Roberson, director of state campaigns for Reproductive Freedom for All.
Reproductive Freedom for All is part of a coalition that is now at work amassing signatures for a 2024 ballot measure that would enshrine abortion rights in Arizona’s state constitution. It will need to turn in more than 400,000 signatures to the state government by summer 2024, and the outcome of the court case could turbocharge that fight.
“It would definitely push us over the edge. My motto would be just burn it all down,” Goodrick said. “I really, truly believe that the people of Arizona do not want a total ban. We’re not going to go back to 1864, where women were property.”
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