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Arizona Senate OKs bill to repeal 1864 near-total abortion ban

Arizona Gov. Katie Hobbs is expected to sign the bill, which would repeal a ban on nearly all abortions that has been law since before Arizona was a state.
Arizona Capitol building
Posted at 2:00 PM, May 01, 2024

The Arizona Legislature approved a repeal of a long-dormant ban on nearly all abortions Wednesday, advancing the bill to Democratic Gov. Katie Hobbs, who is expected to sign it.

Two Republicans joined with Democrats in the Senate on the 16-14 vote in favor of repealing a Civil War-era ban on abortions that the state’s highest court recently allowed to take effect. The repeal bill narrowly cleared the Arizona House last week.

Hobbs said in a statement that she looks forward to quickly signing the repeal into law.

“The devastating consequences of this archaic ban are why I’ve called for it to be repealed since day one of my administration,” she said.

“Arizona women should not have to live in a state where politicians make decisions that should be between a woman and her doctor,” Hobbs continued. “While this repeal is essential for protecting women’s lives, it is just the beginning of our fight to protect reproductive healthcare in Arizona.”

The revival of the 19th century law had put Republicans on the defensive in a battleground state for the presidential election.

“Across the country, women are living in a state of chaos and cruelty caused by Donald Trump,” Vice President Kamala Harris said in a statement on Wednesday.

“What is happening in Arizona is just the latest example,” she continued. “While Arizona Democrats have worked to clean up the devastating mess created by Trump and his extremist allies, the state’s existing ban, with no exception for rape or incest, remains in effect.”

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If the repeal bill is signed, a 2022 statute banning the procedure after 15 weeks of pregnancy would become Arizona’s prevailing abortion law. Still, there would likely be a period when nearly all abortions would be outlawed, because the repeal won’t take effect until 90 days after the end of the legislative session, likely in June or July.

Arizona state Attorney General Kris Mayes called the vote “a win for freedom in our state,” but expressed concern that without an emergency clause, Arizonans would still be subject to the near total-abortion ban for some time.

“Rest assured, my office is exploring every option available to prevent this outrageous 160-year-old law from ever taking effect,” she said.

The near-total ban on abortions, which predates Arizona’s statehood, permits abortions only to save the patient's life — and provides no exceptions for survivors of rape or incest. In a ruling last month, the Arizona Supreme Court suggested doctors could be prosecuted under the 1864 law, which says that anyone who assists in an abortion can be sentenced to two to five years in prison.

Voting on the bill stretched more than an hour, amid impassioned speeches about the motivations behand individual votes.

“This is about the Civil War-era ban that criminalizes doctors and makes virtually all abortions illegal, the ban that the people of Arizona overwhelmingly don’t want,” said Democratic state Sen. Eva Burch. "We’re here to repeal a bad law. I don’t want us honoring laws about women written during a time when women were forbidden from voting because their voices were considered inferior to men.”

There were numerous disruptions from people in Senate gallery, as Republican state Sen. Shawnna Bolick explained her vote in favor of repeal, joining with Democrats.

GOP state Sen. Jake Hoffman denounced Republican colleagues for joining with Democratic colleagues, calling it an affront to his party's principles.

“It is disgusting that this is the state of the Republican Party today," Hoffman said.

Advocates on both sides of the abortion issue arrived outside the Arizona Senate on Wednesday to emphasize their views. They included people affiliated with Planned Parenthood and faith-based groups opposed to abortion.

A school-age girl kneeled in prayer in front of a table holding a large statute of the Virgin Mary, while a man with a megaphone shouted at passersby to repent.

“I am expecting it will be repealed, but I am praying it won’t be,” said Karen Frigon, who was handing out brochures from the Arizona Right to Life.

Arizona is one of a handful of battleground states that will decide the next president. Former President Donald Trump, who has warned that the issue could lead to Republican losses, has avoided endorsing a national abortion ban but said he’s proud to have appointed the Supreme Court justices who allowed states to outlaw it.

The law had been blocked since the U.S. Supreme Court’s 1973 Roe v. Wade decision guaranteed the constitutional right to an abortion nationwide.

When Roe v. Wade was overturned in June 2022 though, then-Arizona Attorney General Mark Brnovich, a Republican, persuaded a state judge that the 1864 ban could again be enforced. Still, the law hasn’t actually been enforced while the case was making its way through the courts. Mayes, who succeeded Brnovich, urged the state’s high court against reviving the law.

Planned Parenthood officials vowed to continue providing abortions for the short time they are still legal and said they will reinforce networks that help patients travel out of state to places like New Mexico and California to access abortion.

Advocates are collecting signatures for a ballot measure allowing abortions until a fetus could survive outside the womb, typically around 24 weeks, with exceptions — to save the parent’s life, or to protect her physical or mental health.

Republican lawmakers, in turn, are considering putting one or more competing abortion proposals on the November ballot.

A leaked planning document outlined the approaches being considered by House Republicans, such as codifying existing abortion regulations, proposing a 14-week ban that would be “disguised as a 15-week law” because it would allow abortions until the beginning of the 15th week, and a measure that would prohibit abortions after six weeks of pregnancy, before many people know they’re pregnant.

House Republicans have not yet publicly released any such proposed ballot measures.