The 1864 abortion law is officially repealed, but when it takes effect remains uncertain

Gov. Katie Hobbs signs a bill on May 2, 2024, to repeal a near-total abortion ban that was first added to Arizona law in 1864. Photo by Jerod MacDonald-Evoy | Arizona Mirror

With a stroke of a pen on Thursday, Gov. Katie Hobbs struck down a 160-year-old near-total abortion ban. 

Just a day earlier, Democrats in the state Senate succeeded in peeling away enough Republican votes to repeal an abortion ban first passed in 1864, while Arizona was still a territory. The push to repeal it came after the state Supreme Court ruled it was once again enforceable, and Hobbs’ signature ended weeks of turmoil as the Republican-majority legislature grappled with the political fallout. 

“Today, we are doing what 23 governors and 55 legislatures refused to do and I am so proud to be the ones that got this job done,” she said shortly before signing the bill, referring to the number of governors before her and previous legislatures. 

The Democrat, who made a campaign promise to repeal the 1864 law and was a vocal supporter of the movement to do so this month, said the threat of the law’s reimplementation had sparked concern across the state. 

“I’ve heard from doctors who were unsure if they would wind up in a jail cell for simply doing their job, women who told me they didn’t know if it was safe to start a family here in Arizona,” she said. 

The Civil War-era law carries with it a mandatory 2 to 5 year prison sentence for doctors who perform an abortion for any other reason than saving a woman’s life. 

But while Hobbs’ approval removes that threat from state law, she noted that access to abortion   is still not guaranteed. With the repeal of the 1864 law, a 2022 law banning abortions after 15 weeks takes precedence. 

That law prohibits abortions beyond its gestational deadline unless a woman faces permanent injury or life-threatening medical complications. Doctors who violate its provisions are subject to a class 6 felony and revoked licenses. It includes no exceptions for rape or incest, and reproductive rights advocates have sounded the alarm over what they view as insufficient protections for women dealing with pregnancy complications; in other states with similarly restrictive laws, doctors have reported delaying care as long as possible to avoid criminalization, leading to worse health outcomes for their patients.

And while the repeal of the 1864 law is now finalized, it won’t be effective until months after the state Supreme Court ruled it can be enforced on June 27. That’s because bills signed by the governor don’t go into effect until 90 days after the end of the legislative session, and with the state budget still being negotiated, that likely won’t happen for several more weeks yet, pushing the repeal’s effectiveness date into the fall at the earliest. 

On Thursday, Hobbs told reporters her office and legislative leadership are still working on the budget, and said she expects a final plan to be reached “soon” but didn’t expand beyond that. 

In response to the conflicting timelines, Democrats and abortion advocacy groups have sought to use legal maneuvers to delay the reimplementation of the 1864 law until the repeal can go into effect. Earlier this week, one day before the repeal was successful, Arizona Attorney General Kris Mayes filed a motion with the state Supreme Court requesting a 90-day reprieve while her office explored the possibility of appealing the ruling to the U.S. Supreme Court. 

And hours after the repeal bill passed the state Senate, Planned Parenthood Arizona, the state’s largest abortion provider, filed a motion asking the state Supreme Court to delay its ruling in light of the legislature’s action. The Arizona Supreme Court has ordered parties in the case to file arguments on whether to approve a delay by next week

Sen. Anna Hernandez, who helped force a vote on the repeal bill in the upper chamber, said that the only way to ensure abortion is protected in the long term is by codifying it as a constitutional right. Arizona voters are likely to see a proposal in November to do just that. The Arizona Abortion Access Act, which has already exceeded its signature requirement threshold to qualify for the ballot, would safeguard access until the point of fetal viability, generally regarded as 24 weeks, and includes exceptions for abortions performed beyond that point. 

“One thing is very clear: our rights are not protected unless they are enshrined in the Arizona State Constitution,” the Phoenix Democrat said. 

Hernandez pointed out that the vast majority of Republicans in the state legislature — 42 of 47 — supported keeping the 1864 law in place, and a plan has already emerged to foil the pro-abortion initiative with competing proposals. Republicans, she said, can’t be trusted to safeguard reproductive rights. 

“Our ability to celebrate this moment goes hand in hand with the reality that repealing this ban today does not mean we are safe tomorrow,” she said. “Tomorrow, we could see the majority party bring forward a motion that would cut the 15 week ban down to 9 weeks or even 6 weeks. Arizonans cannot trust this body to follow the will of the majority of Arizona voters.” 

Democrats in Arizona are counting on the furor over abortion rights to mobilize voters in November — and award the party a legislative majority for the first time in decades. 

“The Republican leadership in Arizona has shown that they are unwavering in their desire to strip us of our rights, our voices and our votes,” Hernandez said. 

But while some Republicans made strategic decisions to support a repeal of the law in the hopes of tamping down the impact of the abortion issue in November, Democratic lawmakers on Thursday said they remain confident that Arizonans will turn out.

The 15-week abortion ban is just as disliked by voters as a near-total ban, according to Rep. Stephanie Stahl-Hamilton, who sponsored the repeal bill. 

“An attack on freedom is simply that, an attack on freedom. Reproductive health care needs to be available to all patients at all times without the fear of criminalization,” said the Tucson Democrat. 

“You cannot dictate and you cannot pinpoint when a complication of pregnancy is going to happen,” added Hernandez. “And that’s why it is so important to get politicians out, get the government out and let that choice be between that person and their medical provider.” 

Athena Salman, the director of Arizona Campaigns for abortion advocacy group Reproductive Freedom for All, was overcome with emotion after the repeal was signed. Through tears, she explained that she was proud of the work done to strike down the law and hopeful for a future when abortion rights in Arizona would be guaranteed. 

“I can’t stop thinking about my daughter,” she said. “And as we continue to go into the future and protect and enshrine the constitutional right to abortion and reproductive freedom, that future generations will not have to live under the restrictions and the interference that we’ve had to experience.”

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