A 160-year-old abortion ban written
before Arizona became a state that punishes doctors with prison time is
now one step away from being repealed after a pair of Republicans in the
state Senate on Wednesday crossed party lines to join Democrats in
voting it down.

On April 9, the Arizona Supreme Court ruled that a near-total ban from 1864,
which forbids all abortions except to save a woman’s life, trumps one
passed in 2022 that strictly limits procedures performed after 15 weeks
of gestation. That decision roiled the state’s political landscape, and a
movement to repeal the law, supported mostly by Democratic lawmakers,
emerged in the Arizona legislature.

Last week, following multiple blocked attempts, the state House of Representatives successfully voted to repeal the law, and on Wednesday the state Senate finalized that effort.

After Republican Sens. Shawnna Bolick and T.J. Shope broke away from their party to side with Democrats, House Bill 2677,
which seeks to repeal the 1864 law, was approved by a vote of 16-14.
The measure is now on Gov. Katie Hobbs’ desk, and the Democrat has vowed
to sign it. A spokesman for her office said that she will do so on
Thursday.

In the Senate, the bill’s passage
followed nearly three hours of heated debate, during which anti-abortion
supporters in the gallery and Republican lawmakers on the floor
excoriated Bolick and Shope for their votes.

Sen. Anthony Kern, R-Glendale, said
it was “insanity” that the duo claim to be pro-life while voting in a
way that violates the core values of the Republican party and allows
abortions to continue in Arizona. Repealing the 1864 law means that the
15-week law, which permits elective abortions up to its gestational
deadline, will take effect instead.

“The craziest thing I’ve seen and
heard is, ‘I’m pro-life, yet I’m going to vote to repeal the abortion
ban.’ It’s insanity to me,” Kern said.

Sen. Jake Hoffman, who heads up the
far-right Arizona Freedom Caucus, said the near-total abortion ban is
“one of the best, strongest, pro-life measures in the country”, and that
the law is “representative of and reflective of our founding fathers’
intent.”

That two Republicans crossed party lines to end that ban, Hoffman said, is unconscionable.

“It is disgusting that this is the state of the Republican Party today,” he said.

And Sen. David Farnsworth, R-Mesa, called on voters to take note of Shope and Bolick bucking their party.

“Voters need to be aware when this happens — when we lose our conservative unity and senators join the other side,” he said.

Bolick, who is the wife of Clint
Bolick, one of the four Supreme Court Justices who reinstated the 1864
law, defended her decision to repeal it by describing her history with
pregnancy. One of her pregnancies, she explained, was unviable and ended
in a D&C, a surgical procedure used in about half of abortions.

She said she was unconvinced that the
1864 law would allow women facing similar health issues to get the care
they need. The law’s exception is strictly reserved for immediately
life-threatening emergencies, but outlaws abortions aimed at preventing
injury to a woman.

“Many women don’t have textbook pregnancies,” Bolick said.

Shope, meanwhile, did not explain his vote and refused to answer questions from reporters afterwards.

David Gowan, a Republican from Sierra Vista, compared Wednesday’s vote to the Sept. 11 terrorist attacks.

“Today feels like 9/11,” he said.

At stake was literally life and death for Arizonans, said Sen. David Farnsworth, R-Mesa.

“Have we become so evil?” he said. “God is watching.”

Repeal vote won’t arrive before 1864 law is enforceable

Despite the action from the state
legislature, the 1864 law is likely to remain in place for some time.
Bills passed by lawmakers don’t go into effect until 90 days after the
legislative session ends.

But, with budget negotiations still
in the beginning stages, that isn’t expected to occur for several more
weeks, pushing the repeal’s effectiveness date into August at the
earliest —  months after the law is actually set to be revived.

In its ruling, the Arizona Supreme
Court justices delayed the enforcement of the 1864 law by two weeks.
Coupled with a separate court order staying the high court’s decision
for 45 days, and a motion from Attorney General Kris Mayes that failed
to convince the justices to reconsider their ruling but did succeed in buying a few more days of time,
the Civil War-era law won’t be fully enforceable until June 27. Until
then, women can obtain an abortion until 15 weeks of gestation, after
which only life-threatening circumstances or a danger of permanent
injury are sufficient to receive a procedure.

The only way the Arizona
legislature’s repeal could have made an impact before the 1864 law is
reimplemented would have been via an emergency clause, which would have
made the bill effective immediately upon the governor’s signature. But
adding such a clause to a bill requires a supermajority vote in each
legislative chamber — a political impossibility as only five Republicans
total supported the bid from Democrats to repeal the law and 16 would
have been needed to add an emergency clause.

Instead, reproductive rights
advocates are looking to use legal maneuvers to delay the high court’s
ruling as much as possible before voters have a chance to weigh in on
the legality of abortion in November. The Arizona Abortion Access Act,
which would enshrine the procedure as a right in the state Constitution,
is headed for the ballot, having exceeded its signature requirement.
The act preserves a woman’s right to an abortion up to the point of
fetal viability, widely regarded as 24 weeks of gestation, and includes
ample exceptions after that time if a doctor deems an abortion is
necessary to safeguard the patient’s life, physical or mental health.

Earlier this week, Mayes filed a motion requesting that the Arizona Supreme Court delay enforcement of the 1864 law for 90 more days
while her office considers whether to appeal to the U.S. Supreme Court.
And on Wednesday, shortly after the state Senate voted to strike down
the 1864 law, Planned Parenthood Arizona filed a motion with the high court requesting that it stay its ruling until the repeal can be implemented.

“We see reproductive freedom
champions at the executive level, with Gov. Hobbs and Attorney
General Mayes, who are working overtime to go back to the courts and
continue to argue that this law should not go into effect,” said Athena
Salman, director of the Arizona campaigns for pro-abortion organization
Reproductive Freedom for All during a news conference held after the
Senate vote.

“We already see that the effective date has been pushed back to June 27,” she added. “That is where the fight stands now.”

And, despite the looming threat of
the Civil War-era ban on the horizon, an executive order issued last
year by Hobbs makes it unlikely that the law will ever be used against a
doctor. The order centralizes prosecutorial authority for abortion law
violations in the state attorney general’s office, and Mayes has vowed
never to take any doctor to court. Several county attorneys criticized
the order and warned that they would launch a lawsuit against it for
infringing on their right to take on cases as elected officials, but no
such lawsuit has materialized.

Dems vow to delay 1864 law, anti-abortion advocates look to foil ballot proposal

Abortion rights supporters celebrated
the successful repeal, but tempered their applause with
acknowledgements that the vote doesn’t constitute immediate relief from
the near-total ban.

Pima County Attorney Laura Conover,
who joined Planned Parenthood Arizona in court against the 1864 law,
said in a written statement that she hopes the vote can give providers
across the state some peace of mind. But, she said, her office will
continue working on challenging the law before it can take effect in
June.

“Today’s vote comes as partial
relief: common sense can prevail. We don’t live in 1864, and neither
should our laws,” she said. “In the meantime, without an emergency
clause, my team will continue to work with nationwide subject matter
experts on what will be our next move in the courts.”

Mayes, too, promised to keep fighting
against the law, echoing Conover’s disappointment that no emergency
clause was added to the repeal bill.

“Today’s vote by the Arizona Senate
to repeal the draconian 1864 abortion ban is a win for freedom in our
state,” she said, in a written statement. “However, without an emergency
clause that would allow the repeal to take effect immediately, the
people of Arizona may still be subjected to the near-total abortion ban
for a period of time this year. Rest assured, my office is exploring
every option available to prevent this outrageous 160-year-old law from
ever taking effect.”

Vice President Kamala Harris placed
the blame for the 1864 law, and the 15-week ban that remains in place in
the interim, squarely on the shoulders of former President Donald
Trump. As President Joe Biden seeks a second term, his reelection
campaign has sought to highlight Trump’s connections to abortion bans
across the country. The Republican appointed three justices to the U.S.
Supreme Court, reshaping the bench into a conservative majority that
later struck down Roe v. Wade, and has himself bragged about being responsible for the end of the constitutional right to abortion.

“Donald Trump is the architect of
this health care crisis in Arizona and across the country — he’s said so
himself,” Harris said, in a written statement. “And he’s ready to go
even further by banning abortion nationwide —  with or without the help
of Congress. We cannot allow these attacks on reproductive freedom to
stand.”

A national ban would nullify any
abortion protections approved by voters in November, if Arizonans vote
to pass the Arizona Abortion Access Act.

Heather Williams, the president of
the Democratic Legislative Campaign Committee, added that the November
election will be critical for the preservation of abortion rights beyond
the Arizona Abortion Access Act. Awarding Democrats a legislative
majority, she said, is the only way to block future attacks from
Republican lawmakers — most of whom opposed the repeal and many of whom
have backed restrictive legislation in the past. 

“Make no mistake: Democrats’ fierce
persistence against weeks of Republican obstruction is the only reason
the 1864 ban was repealed and this shows a clear contrast in leadership.
As Republicans regroup to defend their 15-week ban and work to
undermine the upcoming abortion ballot measure in Arizona, we are
focused on flipping the two seats in each chamber that will deliver
Democratic majorities in Arizona’s legislature,” Williams said, in a
written statement. “The only way to protect and expand reproductive
freedoms in Arizona is to elect Democrats to the state legislature.”

The GOP majority in the legislature has signaled an interest in sending competing abortion-related proposals to the ballot in November as a way to detract support from the Abortion Access Initiative.

And Cathi Herrod, president of the
Center for Arizona Policy, an anti-abortion organization that is behind
most of the state’s restrictive laws, said on Wednesday that the focus
should now turn to defeating the pro-abortion initiative. CAP is a
backer of the It Goes Too Far Campaign, which seeks to convince voters
that the Arizona Abortion Access Act is too extreme.

“Today, the Arizona Senate has voted
to repeal the pre-Roe law that once protected both the lives of unborn
children and the well-being of mothers,” Herrod said in a post on social media site X,
formerly Twitter. “I acknowledge and commend the courage of those
lawmakers who stood resolutely with the unborn and their mothers. Now,
in Arizona, our focus is to expose and defeat the extreme abortion
amendment likely to be on the November ballot.”

Jake Warner, an attorney for Alliance
Defending Freedom who argued in court to reinstate the 1864 law,
lamented the Senate’s vote but said the effort to keep the law in place
isn’t over.

“We commend those who stood their
ground to protect the lives of our most vulnerable Arizonans, and we
will continue to do everything we can to advocate for real support and
real healthcare for women, families, and unborn children here and across
the country,” he said.