AZ House has voted to repeal the 1864 abortion ban upheld by the Supreme Court

Rep. Stephanie Stahl Hamilton, D-Tucson, watches the voting on her House Bill 2677, which repeals a near-total abortion ban that was recently upheld by the Arizona Supreme Court. On April 24, 2024, Democrats in the Arizona House of Representatives joined with a handful of Republicans to force a vote on the bill, which passed 32-28. Photo by Jerod MacDonald-Evoy | Arizona Mirror

After two weeks of thwarted attempts, the Arizona House of Representatives voted Wednesday to repeal a near-total abortion ban from 1864, with three Republican lawmakers breaking from their party to join Democrats in striking it down. 

Earlier this month, the Arizona Supreme Court upheld the 1864 law, which carries with it a mandatory prison sentence for doctors who provide an abortion for any reason other than saving a woman’s life, over a 15-week gestational ban passed in 2022. 

The ruling sent shockwaves through Arizona’s political landscape, and several attempts to repeal the 160-year-old law in the state legislature on April 10 and April 17 were blocked by the GOP majority. At the time, only Rep. Matt Gress, R-Phoenix, who’s facing reelection in a swing district that has a history of punishing anti-abortion politicians, supported Democrats in their bid to eliminate the law before it’s set to go into effect on June 8. 

But those initial pushes to strike the near-total ban from the books fell short by just one vote in a chamber controlled by Republicans. The stumbling block was a procedural motion to force a vote on the bill, which failed repeatedly because Gress was the only GOP lawmaker who voted to bring the repeal legislation to the floor.

That changed on Wednesday, when Republican Rep. Tim Dunn, R-Yuma, joined Gress in bucking House Speaker Ben Toma and the rest of the GOP caucus, allowing the vote to occur. Dunn and Gress then voted to approve House Bill 2677, as did Rep. Justin Wilmeth, R-Phoenix.

The bill passed with a vote of 32-28 and has been sent to the state Senate for approval. Because the legislature is meeting just one day a week while budget negotiations ramp up, the earliest the upper chamber can take action on the bill is May 1. (The Senate on April 17 paved the way for the vote by introducing its own identical bill; when it convenes on May 1, the chamber is expected to substitute the House measure for the Senate bill. If it passes, it would be ready for Gov. Katie Hobbs to sign.)

Republicans who supported the 1864 near-total ban denounced the repeal during a litany of floor speeches, and criticized their colleagues who they viewed as going against the party’s core values. 

“I am disgusted today,” said Rep. Rachel Jones, R-Tucson. “Life is one of the tenets of our Republican platform. To see people go back on that value is egregious to me.”

Rep. Alexander Kolodin, a Scottsdale Republican, blasted his colleagues and other Republicans who have said that failing to repeal the Civil War-era law will lead to GOP losses at the ballot this November — and could mean Democrats take control of the Legislature for the first time in decades.

“We’re willing to kill infants to win an election. Put in that context, it’s a little harder to stomach” Kolodin said. “Politics is important, but it’s not worth our souls.”

Toma, who is running to represent a staunchly Republican West Valley district in Congress, said that the 15-week gestational ban, which would take precedence if the 1864 law is repealed, is insufficient to protect the state’s most “vulnerable” population. 

“I feel compelled to reiterate my personal view that this decision to repeal the abortion ban in Arizona effectively means that we are allowing the murder of unborn children up to 15 weeks of pregnancy,” Toma said. 

The Glendale Republican voted to pass that law in 2022. 

In a statement posted to social media site X, formerly Twitter, Gress pushed back on criticism of his support for repealing the 1864 law and sought to straddle the line between denouncing the Civil War-era law and affirming his pro-life bonafides.

“As someone who is both Pro-Life and the product of strong women in my life, I refuse to buy into the false notion pushed by the extremes on both sides of this issue that we cannot respect and protect women and defend new life at the same time,” he wrote. 

Dunn, meanwhile, justified his vote to strike down the 1864 law by saying it was the only option left to defeat a pro-abortion initiative headed for the November ballot. And, he added, the 15-week limit approved in 2022 is preferable because it includes more leeway for women who face dangerous pregnancy complications. 

The 15-week law includes exceptions for abortions performed after its gestational deadline if a woman is facing life threatening danger or permanent injury, while the exception in the 1864 near-total ban is strictly for imminently life-threatening situations. Neither law includes any exception for pregnancies arising from rape or incest. 

“I am voting today to repeal (the 1864 law). By so doing, the Arizona law will revert to exceptions for rape, incest, and life of the mother, and outright ban all abortions after 15 weeks,” Dunn wrote in a statement posted to X. “Should the pre-Roe law remain in effect, I firmly believe more lives will be lost over time. The public backlash would result in codifying disturbing and unlimited abortions in the Arizona Constitution, which is something that I cannot allow to happen.” 

The Arizona Abortion Access Act seeks to codify abortion as a right in the state Constitution up to 24 weeks of gestation, with ample exceptions beyond that point if a woman’s doctor deems performing an abortion is necessary to protect her life, physical or mental health. After the state Supreme Court ruled to reinstate the 1864 near-total ban, Republicans worried that Arizona voters, faced with a stark choice between no access or some access, would side with the initiative. 

GOP looks to foil pro-abortion initiative with competing proposals

Less than an hour before the House voted to eliminate the 1864 law, Republican lawmakers launched the first step in the party’s plan to defeat the Arizona Abortion Access Act. The House Rules Committee approved the late introduction of three pieces of legislation intended for the November ballot. The sponsors are all GOP party leaders: Speaker Toma, Rep. Travis Grantham, R-Gilbert, Majority Leader Leo Biasiucci, and Majority Whip Teresa Martinez. 

While no information on the content of the bills has been released, they’re widely regarded to be the culmination of a GOP plan leaked last week to draw voters away from the pro-abortion act by confusing them with other abortion-related proposals. 

According to that document, lawmakers are considering enshrining a 14- or even 5-week gestational ban into the state constitution as an alternative to the Arizona Abortion Access Act. 

Another option might be adding all of the state’s current abortion laws, which mostly serve as hurdles for the patient to surpass, such as a mandatory ultrasound requirement and a 24 hour waiting period, to the state Constitution. Doing so would protect the laws from being nullified by the Arizona Abortion Access Act, which invalidates restrictive abortion laws that don’t uphold a woman’s right to the procedure. 

Also included in the latter ballot proposal idea would be a caveat that allows legislators to continue passing laws regulating abortions. Ordinarily, voter-approved initiatives cannot be modified by lawmakers unless the changes are either strictly in line with the original initiative or they’re taken back to the voters. 

Proposals sent to the ballot by lawmakers don’t need the governor’s approval, meaning that her veto stamp can be avoided. 

Republican bid to circumvent AG shot down

Opponents of repealing the 1864 law cited an executive order issued by Hobbs last year as a reason for keeping the near-total ban in place. That order centralizes the authority for prosecuting abortion law violations in the Arizona Attorney General’s Office, effectively preempting the ability of any county attorneys to take a doctor to court because Democratic AG Kris Mayes has vowed never to prosecute anyone. 

On Wednesday, as Gress made a motion to force a vote on the bill that would repeal the 1864 law, Kolodin offered a substitute motion to amend the bill instead. The Scottsdale Republican said he hoped to add a provision to the measure allowing anyone to launch a lawsuit against doctors for violating the 15-week gestational ban. Repealing the 1864 near-total ban means that the 15-week limit will be the law of the land. 

Adding an amendment that could help everyday Arizonans enforce the 15-week law would ensure that it is properly respected, according to Kolodin. Otherwise, with Mayes unwilling to prosecute violations of the law and no other county attorney able to take up such cases, the law exists in name only. 

“What assurance do we have that any of Arizona’s executive officers will actually enforce the 15 week law if we repeal the pre-Roe law?” Kolodin asked. 

Republicans who oppose repealing the 1864 law fear doing so constitutes removing the one effective threat against abortion providers. While the Civil War-era law carries with it a mandatory prison sentence, the 15-week law has a much less extreme punishment of a class 6 felony for doctors who perform an abortion beyond its gestational deadline for any other reason than to prevent death or permanent injury.

But Kolodin’s attempt to empower Arizonans to sue doctors failed, after Gress and Dunn joined Democrats to vote it down. 

Move to streamline legislative process rejected

A push to guarantee that the repeal bill is sent to both the Senate and governor immediately upon its approval also failed to succeed, with GOP leadership chastising supporters of the move as “sore winners” and “driving the knife further into the wound”. 

Legislative rules decree that a bill, once passed by one chamber, must be sent to the other for approval. Once the latter chamber greenlights the bill, it must then be sent promptly to the governor, unless amendments were made that require the original chamber’s review. Despite that, shortly after the House voted to repeal the 1864 law, Gress made a motion to mandate that the chamber send the bill immediately to the Senate, and, once it makes its way back to the House, immediately to the governor as an apparent safeguard against any future reticence from GOP leadership. 

The motion failed, by a vote of 30-30, with Dunn and Wilmeth, who both helped pass the repeal, refusing to join Gress. 

Speaking to reporters afterwards, Toma responded angrily to a question about whether he could guarantee that the bill will be properly moved, saying he wouldn’t guarantee anything. The repeal measure was sent to the Senate on Wednesday, shortly after the House adjourned for the day. 

GOP leader punishes some pro-repeal lawmakers

Minutes before the end of the floor session, announcements were made that Democratic Minority Leader Oscar De Los Santos and Gress would both be removed from the House Appropriations Committee. De Los Santos was also removed from the Rules Committee.

Toma refused to explain the reasoning behind the removal to reporters. 

“’Cause I’ve decided so,” he said. 

Wilmeth and Dunn, who also voted to repeal the 1864 law, were not similarly punished and Toma said they wouldn’t be. 

De Los Santos characterized the move as retaliation, but said he refused to be intimidated. 

“We will not stop fighting for the people of the state of Arizona, we will not stop fighting to protect reproductive freedom,” he said. “There is nothing, let me repeat myself, there is nothing that they can do to intimidate me or silence me and the people of this state.”

It’s unclear why De Los Santos was caught up in punishments. The Laveen Democrat spoke little on Wednesday outside of supporting the motions of his colleagues or voting. But on April 10, moments after the GOP majority blocked the first attempt to repeal the 1864 law, De Los Santos and other prominent Democratic lawmakers led the party in loudly excoriating Republicans, chanting “Shame!” and “Save Women’s lives!” 

That display was later criticized by Republican lawmakers, who called it “insurrectionist behavior”. And on Wednesday, while explaining his vote against repealing the law, Toma reiterated his disapproval of the reaction from Democrats. 

“The lack of decorum we saw from members of the other side of the aisle displayed on this very floor two weeks ago is completely unacceptable,” he said. “This is a legislative body, this is not a place for activism. We must be able to respectfully disagree and have honest debates while we make critical decisions for the people of Arizona.” 

Minority Leader Lupe Contreras warned that the party was prepared to retaliate for the snub. The Democrat from Avondale didn’t elaborate on what options were available to do so, but said that, just as Democrats were able to peel away Republicans to pass the repeal, they could do so again to take action. 

“We were doing the people’s work, we weren’t trying to undercut Republicans. It was all about doing the people’s work, and that’s what was done today,” he said. “For them to pull one of my members off of the only two committees that we have left is bullsh– and I’m not going to take it. I’m not going to stand for it.” 

Abortion advocates: ‘too little, too late’

Progressive organizations reacted to the news of the House’s repeal of the Civil War-era ban with lukewarm approval, and, in some cases, outright skepticism. Some pointed out that the GOP-majority failed to add an emergency clause to the bill that could ensure it goes into effect immediately, preempting the 1864 law’s reinstatement on June 8. Instead, the bill will have the force of law 90 days after the legislative session ends — which could still be months away. 

But adding an emergency clause to the bill was a political impossibility. Doing so would have required a supermajority vote, meaning that Democrats would have needed to recruit 11 Republican votes.

Chris Love, spokesperson for the Arizona for Abortion Access campaign which is working to place the Arizona Abortion Access Act on the November ballot, was unimpressed. She pointed to the pending GOP ballot proposals as proof that Republicans aren’t actually committed to repealing the 1864 law.

“Yet again, anti-abortion politicians in the Arizona Legislature are being dishonest,” she said in a written statement. “Just hours after dropping placeholder bills to refer multiple abortion bans to the ballot in an attempt to confuse voters, these same politicians refused to stop the 1864 ban from taking effect on June 8. They have no sincere intention of protecting abortion access here in Arizona. This move to repeal the 1864 ban is too little, too late.”

While Planned Parenthood Advocates of Arizona CEO Angela Florez celebrated the repeal vote, she also pointed out that threats against reproductive rights still exist. The solution, she said, is enshrining abortion as a right in November. 

“Arizonans cannot stop fighting,” she said, in a written statement. “Even with the repeal of the Civil War-era ban, the state will still have a ban on abortion after 15 weeks of pregnancy that denies people access to critical care. And lawmakers continue to attack Arizonans’ ability to access reproductive health care. Our right to control our bodies and lives is hanging on by a thread.Thankfully, voters will have the opportunity to take back control.” 

Mari Urbina, managing director of Indivisible, which has been actively involved with signature gathering efforts for the Arizona Abortion Access Act, warned that attempts from some Republicans to cast themselves as champions for reproductive rights won’t be successful.

“Republicans got us into this mess,” she said, in a written statement. “Republicans are still responsible for the nightmare scenario Arizonans have been dealing with this spring. They blocked efforts to repeal the 1864 law at least ten times in the past two weeks. Voters are not going to be fooled.”

Meanwhile, anti-abortion groups lamented the move to repeal the near-total ban from 1864. 

Cathi Herrod applauded lawmakers who voted against repealing the near-total ban and said striking it down would be harmful. 

“Today’s House vote to repeal the pre-Roe law opens the door to great loss of life for unborn children and harm to women,” she said. “With the Senate already on record to vote on the repeal, the most protective pro-life law in the country is poised to fall to the appetites of pro-abortion activists.”

Herrod is the president of Center for Arizona Policy, which has been behind most of Arizona’s anti-abortion laws, including the 15-week gestational ban that paved the way for the 1864 law. 

Jake Warner, an attorney for Alliance Defending Freedom who argued in court to reinstate the territorial law, rebuked Republicans who supported the repeal. 

“The result of today’s vote is disappointing, but it doesn’t change the fact that every life is valuable from the moment of conception. Government officials — especially those who have promised to affirm life — should do everything they can to protect unborn children,” he said in a written statement.

And some urged voters to punish the Republican lawmakers who voted repeal the 1864 law by backing their opponents. 

“Rep. Gress voted today to legalize abortion till birth,” Kolodin said in a post on X. “Only (Pamela Carter) deserves LD4’s vote. Republican is more than a name.” 

“Today, three Republicans in the @AZHouseGOP voted WITH every Democrat, voted FOR murder, and voted FOR the shedding of innocent blood. Look at their names and remember them this election year,” Sen. Anthony Kern, R-Glendale, wrote in a post on X, accompanied by a photo of the final repeal vote that included the names of Wilmeth, Gress and Dunn.

This story has been updated with additional comments and reporting.

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