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Arizona House repeals 1864 abortion ban

Arizona Rep. Tim Dunn of Yuma, right, chats with Rep. Steve Montenegro ahead of the House considering the repeal of an 1864 abortion law.
Capitol Media Services photo by Howard Fischer.
Arizona Rep. Tim Dunn of Yuma, right, chats with Rep. Steve Montenegro ahead of the House considering the repeal of an 1864 abortion law.

By Howard Fischer
Capitol Media Services

PHOENIX -- The state House voted Wednesday to repeal the 1864 law that outlaws abortions except to save the life of the mother.

The 32-28 vote came after heated opposition from most Republicans, with foes of HB 2677 describing abortions as "barbaric,'' comparing it to slavery, and linking it to attempts by eugenicists to control the Black population. But three Republicans -- Tim Dunn of Yuma, and Matt Gress and Justin Wilmeth, both of Phoenix -- voted with all the Democrats to provide the margin for approval.
That sends the measure to the Senate where a preliminary vote last week shows their appear to be sufficient votes this coming Wednesday to approve identical language.
Hobbs has said she will sign the measure when it reaches her desk.
But none of this changes the fact that, even with her signature, the repeal -- like any legislative action -- would not take effect until 91 days after the 2024 session finally ends. At the current rate of progress at the Capitol, that could mean an effective date of August -- or later.
What makes that critical is that court rulings have delayed enforcement only until June 8.
Gov. Katie Hobbs has issued an executive order stripping all 15 county attorneys of their authority to prosecute any law dealing with abortion, giving that power to Attorney General Kris Mayes. And she, in turn, has said she doesn't intend to bring such charges against anyone.
But it remains an open question of whether that executive order actually is enforceable or whether, beginning that date, doctors could face liability under the old law which says anyone performing an abortion can be sentenced to up to five years in prison.
"My office continues to look at ever legal option available to prevent that from ever happening,'' Mayes said in a statement following the vote.
One possible hurdle remains -- even assuming Senate approval.
Under normal circumstances, once that happened, it would be up to House Speaker Ben Toma to send the final version to Hobbs. But the Peoria Republican, who said he believes that life begins at conception -- and who voted against repeal -- refused to commit to sending the final measure to the governor.
"I'm not guaranteeing nothing,'' he said.
And if he refuses, that sets the stage for another fight next week, though it appears the votes would be there to force his hand.
Wednesday's action all stems from actions of the U.S. Supreme Court.
In 1973 the justices concluded in Roe v. Wade that women have a constitutional right to terminate a pregnancy. That has allowed abortions through fetal viability, generally considered to be between 22 and 24 weeks, though there have been exceptions for the procedure beyond that.
All that changed when the high court overturned Roe, returning decisions to each state.
Arizona never repealed its territorial-era law even following that 1973 ruling.
Earlier this month the Arizona Supreme Court concluded that old law not only remains enforceable but trumps a 2022 state law that permitted abortions until 15 weeks. The majority of the justices concluded that 2022 law specifically said it was not overriding the older law.
If and when Hobbs signs the repeal, that leaves the 15-week law as the only one on the books when it takes effect later this year.
During Wednesday's debate, multiple foes made it clear that, even at 15 weeks this is not something that should be allowed in Arizona.
"Abortion is barbaric,'' said Rep. Jacqueline Parker, R-Mesa.
"It is akin to slavery,'' she said. "It is establishing a baby is mere property that can be disposed of as the property owner sees fit.''
Rep. Rachel Jones, R-Tucson, said about half of all abortions are a surgical procedure, claiming that "they do rip the baby's limbs off.'' But most reliable medical information says that is necessary only in a small number of such cases where it is otherwise impossible to remove a baby from the womb.
And Rep. David Marshall, R-Snowflake, who is Black, said there is a disparity among races. He cited a decade-old report to Congress by the Centers for Disease Control which said that Black women make up 14% of the child-bearing population "yet obtained 36.2% of reported abortions.''
Overall, Marshall said, Black women are far more likely to obtain an abortion than a white woman.
"Blacks have been unwitting victims of a hidden racist agenda of those behind abortion and birth control organizations because they believe they were receiving a new civil rights choice,'' he said.
Gress and Wilmeth have said many of their constituents do not support the 1864 law. But they also face a political reality: Both are in districts where voters have shown they are as likely to elect a Democrat as a Republican.
Rep. Alexander Kolodin, R-Scottsdale, lashed out at Republicans who appeared to be concerned about losing their 2024 elections if they back the old law.
"We're talking about killing infants,'' he said.
"Let's think about that,'' Kolodin continued. "We're willing to kill infants in order to win an election.''
Supporters of repeal, who were beaten back in prior efforts in the past two weeks, pretty much stayed silent on Wednesday once they were sure they had the votes.
Hobbs, however, put out a statement immediately after the vote claiming credit, saying lawmakers heeded the call she made in her State of the State speech to repeal the law.
What the governor did not say, though, is that Rep. Stephanie Stahl Hamilton, D-Tucson, had introduced the exact same measure for years, even before Hobbs took office in 2023.
In each of these years, Stahl Hamilton could not even get a hearing. The same was true this session.
But the Arizona Supreme Court decision declaring that the 1864 law could again be enforced enabled her and other abortion rights advocates to get the support from a handful of Republicans to finally force a roll-call vote over the objections of foes who used multiple procedural maneuvers for weeks to try to stop that from happening.
On Wednesday, Kolodin sought to have Stahl Hamilton's bill come to the floor for debate.
More to the point, he wanted to add an amendment to say that if Arizona is to allow abortions up to 15 weeks there also needs to be a private right of action. That would allow any Arizonan to file a complaint against any doctor who performed an abortion beyond that point if prosecutors did not.
Kolodin said that is necessary because of Hobbs' executive order and Mayes' promise not to bring charges in any case of abortion, even after that 15-week period. But he could not get the votes for his plan, paving the way for that final 32-28 vote for simple repeal.
Toma made it clear he was not happy with having his position on abortion overridden by a majority of House members.
He immediately removed Gress from his position on the House Appropriations Committee, as it was Gress who made the motion Wednesday to bring HB 2677 to the floor for a vote despite the fact it never went through he regular committee process.
And Rep. Oscar De Los Santos, D-Laveen, who seconded that motion, also was stripped of his assignments to both the Appropriations and Rules committees.
"Because I decided it,'' Toma said when asked about the move. And as to whether it was a punishment, he said "I'm not answering that.''
Even if the repeal is signed into law, that won't end the debate in the Republican-controlled Legislature.
The Rules Committee on Wednesday agreed to allow House GOP leadership to introduce three new ballot proposals even though the deadline for that had passed months earlier.
Toma said there is no specific plan. But he already has circulated proposals by House Republican staff to put alternatives on the November ballot to an initiative that, if approved by voters, would place a right to abortion in the Arizona Constitution.
That measure, which backers say already has more signatures than required, would allow abortion for any reason up until fetal viability. But it also would permit the procedure beyond that point in cases of preserving the life or the mental or physical health of the mother.
Among the proposals are alternatives, one of which would ban abortions at six weeks of pregnancy.
Proponents have made it clear that the goal is not necessarily a more restrictive law than the initiative would allow but instead to provide multiple options on the ballot, something they admitted could dilute voter support for the initiative.
The gap between the effective date of the Supreme Court ruling allowing the old law to take effect and when a bill signed by Hobbs could become law already has resulted in a proposal to be introduced Thursday in the California Legislature.
A spokesman for Gov. Gavin Newsom said SB 233 would temporarily allowed licensed Arizona doctors to provide abortion and related care to patients traveling to California trough Nov. 30.
Under that measure, the Arizona doctors would be under the oversight of either the California's Medical Board and Osteopathic Medical Board and would be required to provide registration information to those boards. The bill also is crafted with a provision to take effect on Newsome's signature.

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Stay tuned to KAWC for updates on this story as they become available.

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