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Mayes wins extended delay of Civil War-era abortion law ruling to mull appeal to U.S. Supreme Court • Arizona Mirror [1]

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Date: 2024-08

Arizona Attorney General Kris Mayes has further delayed the Arizona Supreme Court’s decision to revive a near-total abortion ban from 1864 — and she’s still eyeing an appeal to the U.S. Supreme Court.

Since the Arizona Supreme Court’s bombshell ruling that the Civil War-era law could once again be enforced earlier this year, the law was repealed by the state legislature. While reproductive rights proponents celebrated the move at the time, they also worried that the legislature’s action would simply delay the ban’s reinstatement, because laws don’t become effective until 90 days after the legislative session ends. But that fear was laid to rest after the lawmakers ended their work in June, which means the repeal will become official on Sept. 14.

A 90-day delay of the court’s ruling Mayes won shortly after the repeal effort succeeded, coupled with a month-long freeze that had been previously agreed to in a related case over the draconian law, pushed its reinstatement until virtually the last week of September, ensuring that the near-total ban from 1864 will never see the light of day.

On Thursday, the Arizona Supreme Court greenlit yet another delay of their ruling. Mayes requested an extension while she considers whether to dispute the legality of the court’s ruling with the highest court in the country. The new delay pushes the enforcement of the state court’s ruling upholding the 1864 law until early November.

The original delay was awarded to allow Mayes time to take the case to the U.S. Supreme Court. Just weeks after four Arizona Supreme Court Justices decided that doctors should be imprisoned for providing abortions for any reason other than saving a woman’s life, Mayes filed a request that they reconsider their ruling. The Democrat took issue with the court’s reliance on a 2021 fetal personhood law to argue that the near-total ban from 1864, and not a 15-week gestational law passed in 2022, should be the law of the land.

The fetal personhood law is currently blocked by an injunction from a federal judge, Mayes wrote, and the Arizona Supreme Court improperly encroached on that case when it used the frozen law to reinstate the Civil War-era ban. On top of that, the case around whether to preserve the injunction holding the 2021 law at bay in the post-Roe era is ongoing, and the Arizona ruling threatens to influence the outcome, according to Mayes.

While the Arizona Supreme Court refused to revise its ruling, it did pause it for 90 days to give Mayes time to consider whether to take her argument to the U.S. Supreme Court.

In her request for an additional extension this week, Mayes noted that U.S. Supreme Court Justice Elena Kagan has given her office until late September to file an appeal. Richie Taylor, a spokesman for Mayes, said that she’s still weighing her options about whether to seek the U.S. Supreme Court’s opinion on the legal issues at stake.

“The AG is still considering that option but has not made any final decisions,” he said in an emailed statement.

In the meantime, reproductive rights advocates are looking to the November election to insulate abortion access from any future hostility in the courts or the legislature. The Arizona Abortion Access Act, which is likely to land on the ballot after turning in more than double the required number of signatures to qualify, would enshrine abortion as a fundamental right in the state Constitution.

If passed by voters, the initiative would restore abortion access up to the point of fetal viability, generally regarded to be around 24 weeks, and protect the ability of health care providers to perform an abortion beyond that point if they deem it necessary to safeguard a woman’s life, physical or mental health. The act would also eliminate existing abortion restrictions, including the current 15-week gestational ban, a prohibition on abortions performed for the sole reason of a fetal genetic abnormality, and nullify the possibility of the 2021 fetal personhood law from ever being revived.

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[1] Url: https://azmirror.com/briefs/mayes-wins-extended-delay-of-civil-war-era-abortion-law-ruling-to-mull-appeal-to-u-s-supreme-court/

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