Arizona Legislature repeals 1864 abortion ban. Here’s what happens next.

A territorial law banning abortion outright in Arizona has been repealed by the state legislature and is expected to be signed into law as soon as it hits the governor’s desk.

“This is about the Civil War-era ban that criminalizes doctors and makes virtually all abortions illegal, the ban that the people of Arizona overwhelmingly don’t want,” said Sen. Eva Burch, D-Mesa. “The majority of the people in this state believe that abortion is a decision that belongs to patients and providers.”

A state supreme court ruling in April reaffirming the ban sent a shockwave through the state, stripping away an already stringent allowance for abortion care of up to 15 weeks of pregnancy.

“This is a clear statement that the Legislature does not want the territorial ban to be enforceable,” said Sen. Priya Sundareshan, D-Tucson.

An emergency a century in the making

Democratic lawmakers and abortion rights advocates spent the month that followed pressuring Republicans in the state legislature to repeal the ban. Despite being incredibly unpopular, nearly all conservative lawmakers defended the ban—and, in fact, previous laws they passed restricting abortion access explicitly paved the way for the total ban to go into effect should federal protections go away.

“While a few tweaks to the pre-Roe law may be in order to provide some clarity on miscarriages and an additional exception for rape,” said Rep. Jacqueline Parker, R-Mesa, “a complete repeal is a betrayal of everything Arizona stands for and has always stood for.”

Republicans also objected to the ban’s characterization as being pre-territorial, as the legislature recodified it into law in 1977. But the language remained the same as the original, Civil War-era statute.

“To cherry-pick one item from nearly 50 years ago shows just how hard those making this argument are grasping at straws,” Hernandez countered. This is a false narrative that this ban was passed in 1977 and signed into law by a Democratic governor.”

Julie Gunnigle, an attorney and abortion rights supporter who attended the vote, compared the mischaracterization to another attempted remake from the same era.

“Do we call Star Wars: A New Hope, George Lucas’ 1997 cinematic masterpiece?” Gunnigle told The Copper Courier. “No, because it would be ridiculous to reference the crappy remaster as the date of origin. Also, Han shot first.”

It took five Republicans to change their stance on the abortion ban in order for it to be repealed. Reps. Matt Gress, Tim Dunn, and Justin Wilmeth sided with Democrats to pass in the House, and Sens. Shawnna Bolick and TJ Shope joined Democrats in passing the repeal bill in the Senate.

“I want to protect our state constitution from unlimited abortions up until the moment of birth,” said Bolick, mischaracterizing a citizen’s initiative that would enshrine abortion rights into the state constitution. “I am here to protect more babies.”

What happens next

The repeal is expected to be signed into law by Gov. Katie Hobbs almost immediately. Hobbs, who campaigned on protecting abortion access, has thus far followed through on her commitment to reproductive health. She repeatedly called on lawmakers to repeal the ban, and created an online resource to offer clarity and options to women and medical providers regarding their rights to abortion access.

Even before the 1864 ban came into play, Hobbs consolidated authority to prosecute violations of Arizona’s strict abortion laws to Arizona Attorney General Kris Mayes, who in turn said she would not prosecute any abortion-related charges.

“This is far from the end of the debate on reproductive freedom, and I look forward to the people of Arizona having their say in the matter,” said Mayes. ”As long as I am Attorney General, no woman or doctor will be prosecuted under this draconian law in this state.”

But even with the threat of prosecution absent and the repeal imminent, all abortion-related healthcare will still be a crime in Arizona for several months. Unless designated as an emergency order by two-thirds of the state legislature, new laws don’t go into effect until 90 days after the legislative session ends.

Arizona’s legislature only meets for part of the year, but has no set end date. The only requirement for the legislature to adjourn for the year is for a state budget to be passed—and if last year is any indication, it might be several months before the Democratic governor and the Republican-led legislature can come to a compromise.

The longest legislative session in state history took place in 2023, with lawmakers working at the Capitol until July 31. If this year follows a similar trajectory, the abortion ban repeal wouldn’t go into effect until October 29, 2024. As it stands, the total ban is slated to be the law of the land beginning June 27, meaning abortion-related healthcare in any form would be a crime in Arizona for four months.

Stalling reinstatement

Mayes has asked the Arizona Supreme Court to pause its ruling for 90 days while her office reviews its initial ruling, but the court has already rejected motions to alter its decision, leaving little reason to expect they’d change course now.

“The Arizona Supreme Court’s decision in the 1864 case relied on a statute that a federal court has enjoined as unconstitutionally vague,” Mayes said in a statement. “My office needs time to thoroughly evaluate these issues before deciding whether or not to ask the United States Supreme Court to review our state court’s decision.”

But whether the total ban is in place for one month or four, the alternative is only slightly less grim: the state’s 2022 15-week abortion ban waits in the wings, with harsh penalties and no exceptions for victims of sexual assault. Abortion rights activists, like Arizona for Abortion Access Act spokesperson Chris Love, say the only path forward is to restore rights previously protected by Roe v. Wade.

“We appreciate the efforts of pro-reproductive freedom lawmakers to repeal this harmful abortion ban. Unfortunately, Arizonans will still be living under a law that denies us the right to make decisions about our own health,” said Love. “Nothing will stop these relentless attacks on Arizonans’ freedoms except the Arizona Abortion Access Act.”

A massive grassroots movement has risen up to make reproductive healthcare a constitutionally protected right in Arizona. A citizen’s initiative known as the Arizona for Abortion Access Act has already gathered over 500,000 signatures to put a measure on the ballot that would enshrine abortion rights into the state constitution.

Should the effort qualify for the ballot, the measure would be put before voters in the November General Election. Not only would the measure remove all abortion restrictions currently in place, but, as a constitutional amendment, it would prevent future efforts to restrict abortion access.