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Arizona’s highest court has upheld a 160-year-old law banning nearly all abortions, a radical move in a critical swing state that could decide who wins the White House in November.
The state supreme court on Tuesday ruled that an 1864 ban on all abortions, except those aimed at saving a woman’s life, is now enforceable. The law does not include exceptions for women’s health, or for victims of rape or incest. It carries a penalty of up to five years in prison for providers.
“Physicians are now on notice that all abortions, except those necessary to save a woman’s life, are illegal,” wrote the justices, who voted 4-2 to revive a law that was written before Arizona was a state and women could vote. The state had previously banned abortions beyond 15 weeks of pregnancy.
Abortion rights have become a divisive issue in American politics since the US Supreme Court struck down Roe vs Wade, the 1973 decision that had enshrined Americans’ constitutional right to an abortion. Several states now have laws that prohibit abortions, with limited exceptions, after six weeks of pregnancy, when many women do not realise they are pregnant.
Arizona is an electoral battleground state where voters could tip the scales in November’s election. Joe Biden defeated Donald Trump there by a margin of less than 11,000 votes in 2020. A Wall Street Journal poll out last week showed Trump, the presumptive Republican nominee, leading Biden there by five points, outside the margin of error.
On Monday Trump said individual states, rather than the federal government, should have the power to regulate abortion. He did not comment on Tuesday’s decision.
Biden has made support for reproductive rights a central issue in his campaign. On Tuesday he described the Arizona ruling as “a result of the extreme agenda of Republican elected officials who are committed to ripping away women’s freedom”.
Voters in Arizona may have the opportunity to over-rule the decision. Arizona for Abortion Access, a coalition of abortion rights groups, said it had gathered enough petition signatures to put a constitutional amendment on the state ballot in November that would ensure access to the procedure up until approximately 24 weeks of pregnancy. A PRRI poll conducted in 2022 found nearly two-thirds of Arizonans said abortion should be legal in most or all cases.
It is one of more than a dozen states where an abortion referendum could be on the ballot this year. Last week, the Florida Supreme Court approved a referendum on abortion for November, when voters will be asked if they want the right to the procedure until viability to be codified in the state’s constitution.
Democrats have decried Republicans for pushing extreme abortion laws, and Republicans’ disappointing performances in the 2022 midterm elections were blamed, in part, on voters rejecting those crackdowns. Trump’s pronouncement on Monday was seen as an effort to moderate the party’s position, given he declined to endorse a national abortion ban that many anti-abortion groups have called for.
Ruben Gallego, the Democratic congressman who is running for the US Senate in Arizona, said his Republican opponent Kari Lake and other “extremist politicians” were “forcing themselves into doctors’ offices and ripping away the right for women to make their own healthcare decisions”.
Lake said she opposed the ruling and “wholeheartedly” agreed with Trump that abortion is a “very personal issue that should be determined by each individual state and her people”.
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