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Arizona House moves forward to repeal 1800s-era abortion ban; heads to Senate

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PHOENIX (AZFamily/AP) — Arizona lawmakers took their first step toward repealing the 1864 near-total abortion ban on Wednesday after they failed in their prior two attempts.

Three Republican lawmakers joined with Democrats to overrule GOP House Speaker Ben Toma, who tried to block the bill for the third week in a row.

The vote was 32-28. The focus now shifts to the state Senate, which is not expected to vote on potentially scrapping the near-total abortion ban until next week. A motion for the bill to be transmitted to the Senate immediately failed after the repeal vote.

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[size=20]#BREAKING: AZ House votes (32-28) to repeal the 1864 near total abortion ban after they failed in their prior two attempts. Focus now shifts to the Senate which could vote next week.[/size]

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Shortly after the vote, Gov. Katie Hobbs welcomed the news, adding that she would do everything in her power to keep abortion accessible to Arizonans.
“I am glad to see the House follow my calls to repeal the archaic 1864 total abortion ban that could jail doctors and endanger the lives of women in Arizona. I’m thankful to House Democrats who worked relentlessly for years to repeal this draconian ban. Now, the Senate must do the right thing and send this repeal to my desk,” she said.
Arizona Attorney General Kris Mayes followed suit, saying that her office would look at every legal avenue to avoid the pre-Civil War law from taking place.
“I am grateful that sanity prevailed in the Arizona House today with the repeal of the draconian, near-total 1864 abortion ban. That 160 year-old-law that criminalizes doctors and nurses for caring for their patients and endangers the lives and health of woman across our state has no place in in the 21st century,” Mayes said. “I call on the Senate to quickly follow suit and join the House in repealing this law. Unfortunately, without an emergency clause that would allow the repeal to take effect quickly, we may still be looking at a period of time when the 1864 could potentially take effect.”
Arizona Republicans have been under intense pressure from some conservatives in their base, who firmly support the abortion ban, even as it’s become a liability with swing voters who will decide crucial races, including the presidency, the U.S. Senate and the GOP’s control of the Legislature.
Read More: Supreme Court to consider when doctors can provide emergency abortions in states with bans
The vote comes a day after Biden said former President Donald Trump, his presumptive Republican rival, created a “healthcare crisis for women all over this country,” and imperiled their access to healthcare.
The Arizona Supreme Court concluded the state can enforce a long-dormant law that permits abortions only to save the pregnant patient’s life. The ruling suggested doctors could be prosecuted under the law first approved in 1864, which carries a sentence of two to five years in prison for anyone who assists in an abortion.
A week ago, one Republican in the Arizona House, Rep. Matt Gress, joined 29 Democrats to bring the repeal measure to a vote, but the effort failed twice on 30-30 votes. On Wednesday, two other GOP lawmakers voted to repeal the bill, Rep. Tim Dunn and Rep. Justin Wilmeth.
There appears to be enough support for repealing the law in the Arizona Senate, but a final vote is unlikely to happen before May 1.
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.
After Roe v. Wade was overturned in June 2022, then-Arizona Attorney General Mark Brnovich, a Republican, persuaded a state judge that the 1864 ban could be enforced. Still, the law hasn’t actually been enforced while the case was making its way through the courts. Brnovich’s Democratic successor, Attorney General Kris Mayes, urged the state’s high court against reviving the law.
Mayes has said the earliest the law could be enforced is June 8, though the anti-abortion group defending the ban, Alliance Defending Freedom, maintains county prosecutors can begin enforcing it once the Supreme Court’s decision becomes final, which is expected to occur this week.
MORE: GOP leaders in Arizona accidentally leaked abortion strategy to Democrats
If the proposed repeal wins final approval from the Republican-controlled Legislature and is signed into law by Democratic Gov. Katie Hobbs, a 2022 statute banning the procedure after 15 weeks of pregnancy would become the prevailing abortion 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.
This past summer, abortion rights advocates began a push to ask Arizona voters to create a constitutional right to abortion.
The proposed constitutional amendment would guarantee abortion rights until a fetus could survive outside the womb, typically around 24 weeks. It also would allow later abortions 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.