Less than a month after the Arizona Supreme Court ruled to uphold a Civil War-era abortion ban, the Arizona Senate voted 16-14 to repeal the 160-year-old law. The repeal relied on the votes of two Republicans, Sens. Shawnna Bolick and T.J. Shope, who voted with the state senate’s 14 Democrats.
A.R.S. § 36-2322 became law in 1864, at a time when Arizona was still merely a U.S. territory. It outlawed abortion from the moment of conception, with an exception only to save the life of the mother. Violators were subject to fines and prison time.
The law has been primarily dormant, as it was replaced by a 1901 law that governed abortion, A.R.S. § 13-3603. That law was declared unconstitutional after the 1973 U.S. Supreme Court ruling in Roe v. Wade that abortion was a constitutionally-protected right. Following the U.S. Supreme Court’s 2022 ruling in Dobbs v. Jackson Women’s Health Organization, Arizona adopted a yet another abortion law that permitted abortions up to 15 weeks of viability.
However, a conflict arose because the 1864 law had never been officially repealed. Planned Parenthood sued the state to challenge the 2022 statute, and in April 2023, Arizona’s top court ruled that the 2022 law “does not independently authorize abortion,” and that the 1864 law was “now enforceable.”