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Arizona lawmakers to take 1864 abortion law back up this week but it's not going away yet

Foes of repealing the territorial-era abortion law praying at the Arizona state Capitol in Phoenix this past week.
Capitol Media Services photo by Howard Fischer.
Foes of repealing the territorial-era abortion law praying at the Arizona state Capitol in Phoenix this past week.

By Howard Fischer
Capitol Media Services

PHOENIX -- State lawmakers return Wednesday with another attempt to deal with the 1864 abortion law.
But it won't go away this week, no matter what happens in the House or Senate.
The Senate appears poised to approve repeal.
But not just yet.
The Arizona Constitution requires all measures to be read "on three different days.'' And with the Legislature now on a once-a-week schedule, Sen. Anna Hernandez, D-Phoenix, says that makes May 1 the earliest her chamber could give final approval.
More problematic is what happens in the House where Speaker Ben Toma could take any Senate-passed bill and put it into a committee to never be heard from again.
That's precisely what he did earlier this year when Rep. Stephanie Stahl Hamilton introduced identical legislation.
But there are indications that the Tucson Democrat may finally have the votes this Wednesday to bypass the speaker and bring the measure directly to the floor for debate. And if she then wins a second vote -- one repealing the territorial-era law that bans abortion except to save the life of the mother -- that could pave the way for the Senate to simply ratify the change.
Even if that were to occur -- and repeal backers are still counting the votes -- procedural requirements still would make May 1 the earliest unless lawmakers scrap their Wednesday-only schedule.
But it still may not be fast enough to ensure there will be no break in access to abortion.
Time is of the essence.
On Friday, Attorney General Kris Mayes sent a letter to hospitals and medical providers informing them that, despite the Arizona Supreme Court ruling two weeks ago upholding the 1864 law, they are in no immediate legal jeopardy if they continue to perform the procedure.
Mayes pointed out that the justices stayed their ruling for 14 days. That is this coming Wednesday.
But she also noted that there is a court order in a separate challenge to the territorial law in which her predecessor, Mark Brnovich, agreed not to enforce the old law for 45 days after the effective date of any Supreme Court ruling upholding that law. That, she said, makes June 8 the earliest any criminal charges could be brought.
Only thing is, even if Hernandez and Stahl Hamilton can get a final vote by May 1 and an immediate signature by Gov. Katie Hobbs, the change would not be effective until 91 days after the Legislature finally adjourns. And given the pace of the current session, that effective date could be August -- or later.
In the interim, that would leave only the executive order by Hobbs stripping county attorneys of their right to prosecute abortion cases as the only shield for medical providers. And while the governor said she is confident in her authority to have issued the order, she also said it will be up to doctors and others to decide if they're willing to risk violating a law -- one no longer protected by court order -- that could put them in prison for up to five years.
That still leaves the more immediate question of whether there are the votes to repeal the old law, regardless of the effective date.
The problem is not in the Senate, where Republicans T.J. Shope of Coolidge and Shawnna Bolick of Phoenix already have voted to align with all Democrats to set the repeal proposed by Sen. Hernandez in motion.
In the House, Republican Rep. Matt Gress of Phoenix voted with the Democrats last week on Stahl Hamilton's bid to bring her already introduced repeal measure to the floor. But that just created a 30-30 tie.
All eyes are now on Rep. Tim Dunn.
The Yuma Republican has said he supports repeal. But, unlike Gress, he has so far been unwilling to support the necessary preliminary motion: Override the objections of the House speaker to bring the repeal to the floor.
Dunn did not immediately return calls about his plans for this coming week.
There's also a political component to all of this.
Gress is in a competitive district, where voters have shown they are as willing to elect Democrats as they are Republicans.
His seat-mate in the House is Democrat Laura Terech. And voters in his LD 4 ousted Republican Sen. Nancy Barto in favor of Democrat Christine Marsh.
Several other House Republicans are in a similar politically competitive situation.
Dunn is in a safer, largely Republican district. But he is attempting this year to convince voters to let him move to the Senate in a race where he will face off against Sonya Willis.
Another wild card has been Rep. David Cook.
But the Globe Republican faces the opposite situation as some of his GOP colleagues: He is running for the Senate to oust incumbent Republican Wendy Rogers of Flagstaff in the safely Republican district. And Cook has to worry that the far more conservative Rogers will use any vote by him to loosen abortion restrictions against him.
Bottom line: Cook said he won't be voting to override Toma, even just to put the repeal issue up for a vote.
Ditto Rep. Justin Wilmeth.
"I will not 'roll' the speaker,'' said he said. But, unlike Cook, the Phoenix Republican said will vote to repeal the 1864 law if the Democrats find two other Republicans to get the issue to a roll-call vote.
"My district is probably very much in favor of repealing it,'' he said.
A lot of what happens depends on Toma.
The speaker has made it clear that he believes life begins at conception and that abortion at any stage is the killing of a child. Personal views aside, he is under his own political pressure in a crowded race for Congress in CD 8 where other primary foes like Trent Franks and Anthony Kern are ardent supporters of the 1864 law.
But Toma also has effectively acknowledged that many Arizonans do not support the old law -- and that they are likely to get a chance in November to enshrine a constitutional right to abortion in the state constitution. It would allow abortion through fetal viability, with exceptions beyond that for maternal physical or mental health.
So he has been urging House Republicans to hold the line, at least for now, and keep the 1864 law in place while staff considers alternatives that also could be placed on the November ballot to undermine the initiative.
Those alternatives so far include a ban at six weeks and another at 14 weeks. Organizers of the initiative have blasted that as blatant method to confuse voters and siphon votes away from the broader law.
There's also another bit of calculus.
Polls suggest that voters would overwhelmingly support the initiative, even with its allowance for post-viability abortions in cases of maternal mental or physical health, if the only other option is the territorial-era law and its virtual ban on the procedure. But that could change if they are being asked to choose between the initiative and a 15-week ban, what would remain if the old law were repealed.
Of 11,407 abortions performed in Arizona in 2022, the most recent figures available, just 380 were performed after the 15th week of pregnancy. Discounting procedures where the fetal age was not known, that is just 3.3% of the total.
Hernandez, however, said she still believes the initiative would be necessary. And the key is that, without the initiative, there are no protections in the Arizona Constitution for the right of women to terminate a pregnancy.
"If we don't have that in the state constitution, then we have no rights,'' Hernandez said.
"What will happen is, if we cannot get the initiative passed we will continue to see different attacks, even more restrictions,'' she said. "I wouldn't be surprised if they try to reduce it down to a six-week ban like there exists in Florida.''