In addition, the state went on to enact a number of other restrictions on abortion over the years, including a law that banned abortion after the 15th week of pregnancy. That law went into effect in March 2022, three months before the Supreme Court overturned the Roe decision with its Dobbs v. Jackson Women’s Health Organization ruling. The 2022 law was virtually identical to the Mississippi statute being challenged in Dobbs, so its constitutionality was questionable when it was passed, but the Dobbs decision changed that.

This meant Arizona had two laws restricting abortion in different ways at the same time, the 1864 law and the 2022 law. The question for Arizona courts then became which law should go into effect. Four of the state supreme court’s seven justices determined on April 9 that the 1864 abortion ban took precedence over the 2022 law that banned abortion only after 15 weeks of pregnancy.

Arizona is not the only state that has conflicting old and new laws about the same issue.

Wisconsin, for example, has a very similar dispute playing out in its courts.

Wisconsin has a law from 1849 that bans abortion unless it is necessary to save the life of the mother. This law only banned abortion after what used to be called quickening, meaning when a pregnant person feels fetal movement. This usually happens somewhere between the 16th to 24th week of pregnancy.

In 1858, the law was amended to ban all abortions – and imposed a harsher punishment if the abortion occurred after quickening. That law had some minor tweaks in the 1950s and stayed in effect until Roe v. Wade.

In 2015, however, Wisconsin passed a law banning abortion after 20 weeks of pregnancy. This later law did not replace, repeal or even acknowledge the 1849 law.

Instead, the 2015 law seemed to assume the 1849 law would remain unenforceable and did not challenge Roe v. Wade.

After the Dobbs decision came out, Wisconsin Attorney General Josh Kaul filed a lawsuit against Wisconsin district attorneys arguing that the 20-week ban should replace the 1849 law.

In December 2023, a Wisconsin judge agreed with the attorney general. The case has been appealed to the state Supreme Court, but the court has not yet said if it will hear the appeal.

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