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AZ House Republicans block repeal of 1864 abortion ban

By Howard Fischer
Capitol Media Services

PHOENIX -- House Republican leaders used procedural maneuvers -- twice -- on Wednesday to block members from even deciding and debating whether to repeal the state's 1864 law banning abortions except to save the life of the mother.
And one of those maneuvers was to adjourn until next Wednesday. That means it will be at least a week before lawmakers have another chance to address the question of whether women in Arizona will again be denied the right to terminate a pregnancy in all but the narrowest circumstances.
Rep. Stephanie Stahl Hamilton told colleagues there is no reason to delay action in the wake of Tuesday's ruling by the Arizona Supreme Court declaring that a 2022 law allowing abortions until the 15th week of pregnancy did not override the 160-year-old statute. In its 4-2 ruling, the justices pointed out that lawmakers never repealed the old law which subjects abortion providers to prison terms of up to five years.
Repeal of the old law would have left only the 2022 statute in place and, along with it, legal permission to terminate a pregnancy up to 15 weeks.
Her request to bring the issue to the floor, however, was sidelined by a motion by House Majority Leader Leo Biasucci, R-Lake Havasu City, to instead adjourn for a week.
All Republicans save Rep. Matt Gress, R-Phoenix, who had made his own similar motion to debate repealing the old law earlier Wednesday -- one also thwarted by House leadership -- voted to go home. That left Stahl Hamilton one vote short of what she needed to even get the issue debated.
How soon -- if ever -- the GOP might be willing to discuss the issue remains uncertain, much less whether there are the necessary 31 votes in the House to approve repeal.
Martinez, a Casa Grade Republican, made it clear she is just fine with the old law.
"In my opinion, removing healthy babies from healthy mothers is not healthcare or reproductive care,'' she said. "Pregnancy is not an illness.''
But Stahl Hamilton said there are implications to allowing the old law to once again be enforced, something that has not happened since the U.S. Supreme Court, in its historic 1973 Roe v. Wade decision, concluded that women have a constitutional right to abortion. That was upset by the high court overturning that precedent in 2022.
"Should the 1864 law on abortion remain in Arizona, people will die,'' she said.
The request to repeal the law is not new. There have been similar efforts by Democrats for at least six years.
This year that took the form of HB 2671 sponsored by Stahl Hamilton, introduced in January. It was assigned to three House committees, none of which even scheduled it for a hearing.
Now, with the Tuesday Supreme Court ruling, Stahl Hamilton made a motion to bring the bill to the full House for debate despite the lack of committee action and, if approved, to forward it to the Senate where at least two Republicans have said they want to repeal the 1864 statute.
That led Biasiucci to move a substitute motion to adjourn which was successful.
All that was done with the blessing of House Speaker Ben Toma. He said there's no need to rush.
"We've had a little over 24 hours since this came out,'' he said. And the Peoria Republican also said there was no need to act now -- if at all.
The justices, in their Tuesday ruling, stayed its effect for 14 days. That is designed to give all sides the time to decide whether there are remaining issues that need to be resolved.
On top of that, former Attorney General Mark Brnovich, defending the territorial-era law in a parallel challenge, agreed in 2022 to not try to enforce it for at least 45 days after the Supreme Court finally issued its ruling in this case.
So that means June at the earliest. Toma said there should be no rush for "a very emotional, charged, complicated issue.''
"For many of us, we're talking about protecting the lives of the unborn, too,'' he said.
"Some of us, fundamentally and ethically have a really big problem with this issue, as you well know,'' he said. "It's completely unfair to rush this through.''
He is correct on one point: Whether the vote came Wednesday or comes next week won't make a legal difference.
That's because new laws -- or repeal of old ones -- do not take effect until 90 days after the session is finally adjourned for the year, regardless of what day a bill is passed and signed by the governor.
The only exception is for measures that are declared an emergency. But that would require a two-thirds vote of both the House and Senate, a margin that does not appear to exist for repealing the old law.
So if lawmakers stay in session into June, something they have done multiple times now, that would mean any repeal -- assuming it is approved -- would not take effect until September. And if the final court order allowing enforcement comes in June, that could leave Arizona women with no legal right to an abortion other than to save the life of the mother for three months.
There is another option: Gov. Katie Hobbs could call a special legislative session on just this issue to run concurrent with the regular session. Then, the moment the bill would be approved, that session would adjourn and that 90-day clock would start to run immediately.
But while Hobbs on Tuesday called on lawmakers to repeal the old law, press aide Christian Slater said Wednesday she has no plans to issue a special session call.
The Supreme Court ruling to approve reinstating what would be the strictest abortion ban in the nation has gathered international attention. What it also has done is raised the level of visible anger at the Capitol.
When Gress' first motion to bring the issue to the floor was sidelined by Republican leadership, Democrats responded with shouts of "shame, shame'' and "blood on your hands.''
Martinez, in later explaining why the vote to repeal should be delayed for further conversation, responded in kind.
"We obviously cannot have those conversations when the Democrats are screaming at us and engaging in extremist and insurrectionist behavior on the House floor,'' she said.
Stahl Hamilton, however, argued there is no reason for delay debate and a vote on an issue on which lawmakers appear to already have made up their minds.
"Today, we need to stay in this chamber,'' she said. "We need to do the job that we were elected to do ... and not play games and not discount the lives that are at stake.''
But even some Republicans who want to repeal the law are hesitant to proceed with an immediate vote.
"I have said we need to address it,'' said Rep. David Cook, R-Globe. But he said House leadership said it wanted "time for cooler head to prevail and let's come up with a plan.''
"It's only a few days since we've been handed this,'' Cook said. Anyway, he said, he had not had a chance to read Stahl Hamilton's bill to repeal the old law as it never was put on an agenda for debate.
And Cook said he's not sure that allowing abortion up until 15 weeks -- what would be the effect of repealing the old law -- is the appropriate cutoff. But what exists now, he said, with the Supreme Court reinstating what effectively amounts to a ban, is not acceptable.
"We've got to update the law with today's standards,'' Cook said.
Toma, however, said he doesn't see this as simply a choice between the old abortion ban and a law that allows the procedure until 15 weeks. He said he sees this as an effort to advance an initiative drive that, if approved in November, would allow all abortions through the point of fetal viability and beyond that in cases where a doctor says it is necessary "to protect the life or physical or mental health of the pregnant individual.''
"Nothing happens in a vacuum down here,'' he said.
But Gress said what his colleagues also need to consider is that if they don't repeal the old law, that will make the decision for voters in November between what amounts to a ban and the initiative. And while he said he doesn't support the initiative, "if we don't repeal the ban, it's going to make voters see something is better than nothing.''
If and when the House approves the measure, at least two Senate Republicans already are on record as supporting repeal: T.J. Shope of Coolidge and Shawnna Bolick of Phoenix. And if all 14 Democrats go along, that would provide the necessary 16 votes for final approval.

On X and Threads: @azcapmedia

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