Arizona Senate Repeals 1864 Abortion Ban, But It Could Still Take Effect

The upper chamber of the Arizona legislature passed a bill to repeal the state’s 1864 abortion ban on Wednesday, but the action may not prevent the absurd law from temporarily taking effect. While Gov. Katie Hobbs (D) is expected to sign the bill on Thursday, unless Republicans force a delay, the repeal still wouldn’t take effect until 90 days after the legislative session ends. (No date is set for the end of the session, but it ended on July 31 last year.) Then, the state would revert back to a 15-week ban unless and until voters pass a constitutional amendment that could be on the ballot this fall.

The state Supreme Court ruled to uphold the Civil War-era ban on April 9 and the Arizona House voted to repeal it last week after two unsuccessful attempts. The 1864 ban—passed before Arizona was a state and when enslaved people were considered property—subjects doctors to prosecution and sentences of two to five years in prison. Two Senate Republicans, T.J. Shope and Shawnna Bolick, joined 14 Democrats to pass the repeal bill. Bolick gave a 21-minute speech describing three of her own challenging pregnancies, one of which ended with a D&C procedure in the first trimester because the pregnancy wasn’t viable. But she’s not exactly a hero (see below).

Attorney General Kris Mayes (D) said the earliest the state can enforce the dusty old law is June 27, and she also asked the state’s high court to block implementation for three months—or until early September—to give her office time to decide whether to appeal to the U.S. Supreme Court.

It’s looking likely that Arizona voters will have a say on abortion access in November, as advocates are collecting signatures for a ballot measure that would restore the right to abortion through fetal viability, or about 24 weeks. The group behind the ballot campaign, Arizona for Abortion Access, said in a statement that there’s still a “dire need” to pass the amendment. “Arizonans will still be living under the 1864 total abortion ban well into the fall,” the statement reads. “The repeal passed without an emergency clause, meaning that it will not take effect until 90 days after the Legislature adjourns, a date that is nowhere in sight.”

MUST READ! Our statement on today’s Arizona Senate vote to repeal one extreme ban and revert to another. It’s a repeal with no set date to take effect & nothing has changed about the need for the Arizona Abortion Access Act. #AZforaccess pic.twitter.com/cNEmy4B5zI

— Arizona for Abortion Access (@azforaccess) May 1, 2024

Arizona Republicans seem pretty scared about their political prospects being tied to abortion in the presidential battleground state: Senate candidate Kari Lake is trying and failing to distance herself from a ban she once supported, and a leaked memo revealed that House Republicans were considering a competing ballot measure codifying access through 14 weeks.

Tellingly, Bolick said she was voting to repeal the 19th-century ban, effectively reinstating the 15-week ban, purely for political reasons. The New York Times reported Bolick “argued that her vote to repeal the 1864 ban could be Arizona’s best shot at curbing the momentum behind a proposed ballot measure to enshrine abortion protections in the state constitution.” She said, “We should be pushing for the maximum protection for unborn children that can be sustained,” amid heckling from anti-abortion advocates.

So stay tuned, because none of this is over.