The AZ Senate has repealed the 1864 abortion ban, after 2 Republicans join Dems

Sen. T.J. Shope listens from his desk on the Arizona Senate floor on May 1, 2024, as Sen. Jake Hoffman excoriated him and fellow Republican Sen. Shawnna Bolick because they voted to repeal a near-total abortion ban that was first implemented in 1864. Photo by Jerod MacDonald-Evoy | Arizona Mirror

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ban written before Arizona became a state that punishes doctors with prison time is now one step away from being repealed after a pair of Republicans in the state Senate on Wednesday crossed party lines to join Democrats in voting it down.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

Sen. Shawnna Bolick, R-Phoenix, spoke about a failed pregnancy she had and her concern than an 1864 near-total abortion ban wouldn’t allow women in similar situations to receive the same medical treatment she did. Bolick was one of two GOP senators who voted on May 1, 2024, to repeal that Civil War-era law. Photo by Jerod MacDonald-Evoy | Arizona Mirror

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 Farnsworth.

“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 Governor 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. 

GOP Sen. Jake Hoffman speaks on the Senate floor on May 1, 2024, and denounces a pair of Republicans who voted with Democrats to repeal a near-total abortion ban first put into law in 1864. Photo by Jerod MacDonald-Evoy | Arizona Mirror

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.

***UPDATE: This story has been updated with additional reporting.

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