Why revival of 1864 abortion law could resonate in US politics beyond Arizona

Revival of a Civil War-era law

Any “person who provides, supplies or administers to a pregnant woman… with intent thereby to procure the miscarriage of such woman, unless it is necessary to save her life”, can be prosecuted under the law dating back to the time of the American Civil War (1861-65).

Effectively, the law imposes a ban on abortion from the moment of conception, except in situations where it is necessary to save the mother’s life. It does not make exceptions for rape or incest, and does not distinguish between medication-based and surgical abortions.

The enforcement of the law, enacted decades before Arizona’s statehood (1912), or the introduction of women’s suffrage in the state (effectively 1914), was blocked by a court in Tucson shortly after the US Supreme Court’s 1973 Roe v Wade decision, which guaranteed women the constitutional right to abortion.

When Roe v Wade was overturned in 2022, Arizona’s then attorney general, Republican Mark Brnovich, successfully appealed to a state judge to undo the Tucson injunction. The state Court of Appeals again suspended the law, but Arizona’s Supreme Court has, in a 4-2 verdict, now allowed for its enforcement, ruling that there is no federal or state law preventing the administration of a near-total abortion ban.

It is still unclear when this law will come into effect. The Arizona Supreme Court has put its ruling on hold for 14 days, with another 45-day delay set to take place in the law’s administration due to a 2022 state court order barring the immediate enforcement of pre-statehood abortion bans.

Polarising abortion debate

Abortion has long been one of the most polarising issues in the US. The debate is firmly set along party lines — pro-life Republicans oppose women’s right to terminate their pregnancy, while pro-choice Democrats support this right, citing women’s bodily autonomy and agency.

Since the Roe v Wade decision was overturned by a majority Republican-appointed US Supreme Court, 14 other states — governed by the Republicans — have banned nearly all abortions. In total, 21 US states have banned or restricted abortion earlier in pregnancy than pre-Roe v Wade.

As the November presidential election draws closer, the latest ruling might leave an impact in Arizona, an important swing state, and beyond.

With the conflict in Gaza continuing to batter Democratic President Joe Biden’s standing among a significant section of his constituents, the party will hope to galvanise its voters on the abortion issue — with rulings such as the one in Arizona providing crucial fodder.

In a major departure from their articulated position, however, Arizona Republicans have also criticised the ruling. “I categorically reject rolling back the clock to a time when slavery was still legal,” Matt Gress, a Republican state representative, said in a statement.

Former President Donald Trump, the Republican presidential candidate, said on Monday that abortion laws should be left to the states. He has previously attempted to avoid the issue, warning that it could lead to Republican losses.

(With agency inputs)