Dahlia Lithwick and Mark Joseph Stern write:

On Tuesday, the Arizona Supreme Court ruled that its total abortion ban, a seemingly dead law dating back to 1864, is once again enforceable, despite more recent legislation that seemed to supercede it. The zombie ban makes virtually all abortions a felony, imposing a prison sentence of two to five years for any provider. There is no exception for rape or incest. The law was enacted before women could vote, and was long presumed to be permanently unenforceable. But the Arizona Supreme Court’s conservative majority, by a 4–2 margin, has now revived it. Republican governors appointed all seven justices on the bench, and the GOP recently expanded the court to entrench this far-right majority—which had no trouble finding that a ban enacted in an era in which women were chattel remains good law in 2024. As a result of this ruling, in 14 days almost every abortion in Arizona will be a crime, and nearly every clinic will close its doors. For all intents and purposes, it’s 1864 again for pregnant people in Arizona.

The decision should serve as a warning for the rest of the country, in light of ongoing efforts to revive the Comstock Act: In the hands of a far-right court, a dead, openly misogynistic, wildly unpopular abortion ban can spring back to life with a vengeance.

This zombie law was passed in 1864, long before Arizona was a state, and was codified in 1901, at which point it included a narrow exception to save the patient’s life. Much more recently, Arizona has passed less restrictive abortion laws, including a 15-week ban that appeared to wipe out more severe bans that preceded it. In late 2022, after the Supreme Court overturned Roe v. Wade, the Arizona Court of Appeals ruled that the two conflicting abortion laws in the state had to be reconciled, or “harmonized.” It maintained that abortion would remain legal through 15 weeks when provided by licensed physicians in compliance with the state’s other laws.

But on Tuesday, the Arizona Supreme Court, tasked with finally “harmonizing” Arizona’s 15-week abortion ban with the total ban dating back to hoop skirts, ruled that in the aftermath of Roe’s reversal in Dobbs, the total ban takes precedence: The more recent 15-week restriction, wrote the majority, “does not create a right to, or otherwise provide independent statutory authority for, an abortion that repeals or restricts” the 1864 law, “but rather is predicated entirely on the existence of a federal constitutional right to an abortion since disclaimed” by Dobbs. In other words, in “harmonizing” the two laws, the harsher one wins out—even though, as the dissenters noted, the Legislature seemed to override this absolute ban when passing the recent 15-week limit. And so, starting in two weeks, even rape victims at the earliest stage of pregnancy may not obtain a legal abortion in Arizona. [Continue reading…]