On April 9, 2024, The New York Times online published an article reporting that the Arizona State Supreme Court reinstated a 160-year-old abortion ban. While I am disturbed that the Arizona State Supreme Court reinstated a 160-year-old abortion ban, I am much more apprehensive that several other partisan Republican State Supreme Courts (or Legislatures) will resurrect similar, antiquated laws?
The Arizona case decision follows the February 16, 2024, Alabama State Supreme Court ruling in an IVF-related case which referenced an 1872 law, the "Wrongful Death of a Minor Act", as part of its rationale to rule that destruction of embryos created by IVF should be treated as children under Alabama law (16 Mar 2024 blog post).
Should anyone be surprised that partisan Republican State Supreme Courts would enforce restrictive, fertility laws enacted well before Roe v. Wade (1971 decision)? Like many commentators, I expected that partisan Republican State Supreme Courts or Legislatures would enforce these old, more-restrictive fertility / abortion laws once Dobbs v. Jackson [Miss.] Women's Health Organization (Dobbs) returned abortion rights decisions to the States.
The New York Times online article reported that Arizona's State Supreme Court upheld an 1864 law that bans nearly all abortions. [T]he court put its ruling on hold for the moment, and sent the matter back to a lower court to hear additional arguments about the law’s constitutionality. (The New York Times online: "Arizona Reinstates 160-Year-Old Abortion Ban".)
The Arizona Supreme Court ruled that "because the federal right to abortion in Roe v. Wade had been overturned, there was no federal or state law preventing Arizona from enforcing the near-total ban on abortions, which had sat dormant for decades". (The New York Times online: "Arizona Reinstates 160-Year-Old Abortion Ban".)
According to the "Appendix A" of Supreme Court Justice Samuel Alito's opinion in Dobbs v. Jackson [Miss.] Women's Health Organization (Dobbs), 35 states created abortion bans between 1825 and 1883. Appendix B of Alito's opinion identified 12 Territories that became States which created abortion bans between 1850 and 1899.
Of the 47 states and territories with abortion bans enacted between 1825 and 1899, the following 24 states have partisan Republican controlled Supreme Courts after the 2023 elections. (Source: Ballotpedia, https://ballotpedia.org/Election_results,_2023:_State_supreme_courts) The 1800s abortion ban enactment dates from the Dobbs decision Appendices are in parentheses.
1. Missouri (1825) 9. Iowa (1858) 17. Georgia (1876)
2. Ohio (1834) 10. West Virginia (1863) 18. Utah (1876)
3. Indiana (1835) 11. Idaho (1864) 19. North Dakota (1877)
4. Alabama (1841) 12. Arizona (1865), [2] 20. South Dakota (1877)
5. Virginia (1848) 13. Nebraska (1866) 21. North Carolina (1881)
6. New Hampshire (1849) 14. Florida (1868) 22. South Carolina (1883)
7. Texas (1854), [1] 15. Wyoming (1869) 23. Tennessee (1883)
8. Louisiana (1856) 16. Arkansas (1875) 24. Oklahoma (1890), [1]
Mississippi also has a partisan Republican controlled State Supreme Court. According to Dobbs "Appendix A", Mississippi enacted that abortion ban in 1952.
Footnotes:
[1] According to Ballotpedia, Oklahoma and Texas have 2 courts of last resort, both of which have Republican majorities.
(https://ballotpedia.org/Election_results,_2023:_State_supreme_courts)
[2] "Appendix B" of the Dobbs decision cited the incorrect year, 1865, that the Arizona abortion ban was enacted. According to the "Background" section (page 5) of the Arizona Supreme Court decision in Planned Parenthood v. Kristin Mayes/(Eric)Hazelrigg (filed April 9, 2024; No. CV-23-0005-PR), [Arizona's] "First Legislative Assembly published a code of laws governing the territory of Arizona in 1864. Called the Howell Code, the laws, established Arizona’s first criminal code, [including] constraints on abortion."
Additionally, the following 23 states have partisan Republican controlled legislatures and executive branches after the 2023 elections. (Source: 270 to Win; https://www.270towin.com/content/state-government-trifectas) As provided above, the abortion ban enactment dates from the Dobbs decision Appendices are in parentheses.
1. Missouri (1825) 9. West Virginia (1863) 17. Utah (1876)
2. Ohio (1834) 10. Idaho (1864) 18. North Dakota (1877)
3. Indiana (1835) 11. Montana (1864) 19. South Dakota (1877)
4. Alabama (1841) 12. Nebraska (1866) 20. South Carolina (1883)
5. New Hampshire (1849) 13. Florida (1868) 21. Tennessee (1883)
6. Texas (1854) 14. Wyoming (1869) 22. Oklahoma (1890)
7. Louisiana (1856) 15. Arkansas (1875) 23. Mississippi (1952)
8. Iowa (1858) 16. Georgia (1876)
Rather than being surprised that Arizona's State Supreme Court upheld the State's 160-year old law banning nearly all abortions, the question to be asked is: Which state(s) with partisan Republican State Supreme Courts or Legislatures and executive branches will do the same?
Complete citation for The New York Times article referenced in this post:
"Arizona Reinstates 160-Year-Old Abortion Ban"
The New York Times online
By Jack Healy
April 9, 2024, Updated 1:45 p.m. ET
Related article:
Arizona’s conservatives brought this political nightmare on themselves
The Washington Post: Opinion
By Ruth Marcu
April 11, 2024 at 2:52 p.m. EDT
https://www.washingtonpost.com/opinions/2024/04/11/arizona-abortion-florida-courts/
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