Hobbs opposes 1864 abortion ban in court, calls on judges to preserve 15-week limit

The Arizona Supreme Court should consider the privacy and well-being of women in the Grand Canyon State and dismiss an attempt to revive a near-total abortion ban from 1864, according to Gov. Katie Hobbs. 

Before the high court is whether to strike down a ruling from the state appeals court that determined a 2022 abortion law supersedes one that first was enacted in 1864. 

The former prohibits abortions after 15 weeks unless the patient’s life is at risk and the latter outlaws all procedures except in cases of imminent danger. Neither includes an exception for rape or incest, and both carry heavy penalties for providers who violate them; the 2022 law carries with it a class 6 felony and a revoked license while the 1864 near-total ban punishes doctors with a mandatory 2 to 5 year prison sentence. 

In a filing this week, Hobbs urged the court to keep the current 15-week limit in place, saying that preserving some access to abortion is critical for Arizona women. The Democrat is an outspoken reproductive rights advocate who ran on a platform to defend abortion access and has used her time in office to advance that commitment, vetoing anti-abortion legislation and using her executive power to ensure no doctor in the state is prosecuted for providing an abortion. 

“I made a promise to Arizonans that I would do everything in my power to protect reproductive freedom, and I’m working every day to follow through on that promise,” Hobbs said in a written statement. “I will continue to fight relentlessly against out-of-touch extremists who want to jail doctors and end the right of Arizonans to make decisions about their own bodies and futures.” 

In her friend of the court brief, Hobbs shared the stories of six women to illustrate her arguments that the ability to receive an abortion furthers the health, safety, educational goals and economic stability of women. Among them were Michele, who was able to escape an abusive relationship without being tied down by an unwanted pregnancy, and Morgan, who welcomed the idea of twins but later found out that one of the fetuses was unlikely to make it and would threaten her health and that of its sibling if she didn’t receive an abortion. 

Two other women, Taylor and Meaghan, weren’t in the right places in their lives to support a child, and their abortions allowed them to go on to obtain college degrees and successful careers, Hobbs told the court. 

“Reproductive decisions are immensely personal, private, and consequential,” wrote Bo Dul, an attorney representing Hobbs. “These choices impact countless other life decisions, including whether to accept certain health risks or undergo certain medical procedures, how to allocate financial resources, where to live, whether to start or continue to pursue educational or career opportunities, and how to structure intimate and family relationships.”

Hobbs posited that the liberty and privacy rights of Arizonans guaranteed by the state constitution may come into play when it comes to abortion access, given how intertwined reproductive healthcare is with the personal liberty and autonomy of women. The Arizona Constitution has long been recognized as including a more explicit right to privacy than its federal counterpart, and abortion advocates have pointed to it as a potential argument in favor of protecting reproductive rights. 

“Few personal decisions are more private or involve greater implications for bodily autonomy and individual liberty than the decision of whether to carry a pregnancy to term and bear a child,” Hobbs told the Supreme Court. “Indeed, a return to a near-total ban on abortion — unmitigated by more recent legislative enactments regulating abortion care by physicians — would raise serious questions under the Arizona Constitution.” 

The Arizona Court of Appeals decided correctly when it chose to allow the 1864 law and the 2022 limit to co-exist on the books, Hobbs added. Reinstating the 1864 near-total ban risks wiping out 50 years of laws regulating abortions passed since Roe v. Wade was decided in 1973, ranging from sonogram requirements to who can provide an abortion. The request from Dr. Eric Hazelrigg, the medical director of a local chain of anti-abortion clinics who was allowed into the case as an intervenor, to hold the 1864 law above so many other laws is nonsensical, Hobbs said.

“Here, (Hazelrigg) would have the Court ignore fifty years of statutory enactments,” wrote Dul. “(His) demand turns reason on its head.” 

Hobbs called on the high court to reaffirm the appeals court’s decision to keep 15-weeks of access intact instead, and to dismiss Hazelrigg’s petition. The judges are set to hear oral arguments in the case in December. 

On the same day that Hobbs filed her amicus brief, the League of Women Voters of Arizona and 16 businesses submitted one of their own, arguing that prohibiting women from obtaining necessary health care would be detrimental for the state’s economy. Studies from the Institute for Women’s Policy Research found that states with narrowed abortion access lose $105 billion annually from reduced workforce participation and increased turnover among women. 

“The relationship between abortion access and economic health is not theoretical,” reads the brief. “Protecting abortion rights creates a stronger economy and greater opportunities for businesses to flourish.”

The League of Women Voters of Arizona denounced any attempt to reinstate the 1864 law as undemocratic, and a violation of the rights of women, who were not allowed to vote until 48 years after the near-total ban was passed. The question of whether to protect access to abortions should be left up to voters, the League said, and not the courts. The group is part of a coalition of reproductive rights organizations that helped develop the Arizona Abortion Access Act, an initiative aiming for the 2024 ballot that, if approved by voters, would enshrine protections for the procedure in the state constitution.