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Democrats, and some Republicans, call for repeal of AZ 1864 near-total abortion ban

After the Arizona Supreme Court reinstated an 1864 law banning nearly all abortions in Arizona, Democrats — and some Republicans — are calling on the state Legislature to repeal the territorial-era ban.

A visibly shaken Gov. Katie Hobbs joined Democratic lawmakers shortly after the court published its decision. She criticized the ruling and said lawmakers should act quickly to repeal the law.

“I am calling on the Legislature to do the right thing right now and repeal this 1864 ban and protect access to reproductive health care,” Hobbs said. “The Republican majority in the Legislature has time and again refused to act to protect our freedoms. They have refused to repeal the extreme civil war near total abortion ban.”

A repeal of the territorial-era ban would allow a 15-week ban passed by lawmakers in 2022 to remain in effect. Hobbs said that is still not ideal and called on voters to support a ballot initiative that would put the right to access abortions into the Arizona Constitution. 

“Let me be clear: Arizona's 2022 abortion ban is extreme and hurts women, and the near total Civil War-era ban that continues to hang over our heads only serves to create more chaos for women and doctors in our state,” Hobbs said.

Some Republican lawmakers also support repealing the territorial era law.

But both Sen. T.J. Shope (R-Coolidge) and Rep. Matt Gress (R-Phoenix) said they support a repeal in order to allow a 15-week abortion ban to remain in effect.  

“Today’s Arizona Supreme Court decision reinstating an Arizona Territorial-era ban on all abortions from more than 150 years ago is disappointing to say the least and has ignored our legislative intent,” Shope said. “I will immediately work with my legislative colleagues to repeal the territorial law so that the policy we placed in Statute, just two years ago, that places reasonable limitations on abortion that a majority of Arizonans support, can stand.”

Former Republican Gov. Doug Ducey, who signed the 2022 bill into law, echoed that sentiment in a statement. 

“I signed the 15-week law as governor because it is thoughtful conservative policy, and an approach to this very sensitive issue that Arizonans can actually agree on,” Ducey said. “The ruling today is not the outcome I would have preferred, and I call on our elected leaders to heed the will of the people and address this issue with a policy that is workable and reflective of our electorate.”

But Ducey and the Republican lawmakers who supported the 2022 law, including Shope, could have included a repeal of the territorial era ban when they passed the new law. 

The state Supreme Court majority cited their failure to do so in its ruling reinstating the 1864 law.

“We consider whether the Arizona Legislature repealed or otherwise restricted [the territorial law] … We conclude that [the 2022 law] does not create a right to, or otherwise provide independent statutory authority for, an abortion that repeals or restricts [the territorial law,” Justice John Lopez wrote.

A spokesman for Ducey did not respond to a request for comment.

It is still unclear whether this new effort to repeal the old law will make it through the Legislature.

House Speaker Ben Toma (R-Peoria) and Senate President Warren Petersen (R-Gilbert) would need to grant permission for a repeal vote to go before lawmakers. But the legislative leaders declined to say if they will allow that vote to happen.

“During this time, we will be closely reviewing the court’s ruling, talking to our members, and listening to our constituents to determine the best course of action for the Legislature,” Toma and Petersen said in a joint statement. 

The Supreme Court paused enforcement of the territorial law for 14 days to allow the lower court to resolve remaining issues in the case, and it could take several additional weeks before the territorial-era ban goes back into effect. 

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Wayne Schutsky is a broadcast field correspondent covering Arizona politics on KJZZ. He has over a decade of experience as a journalist reporting on local communities in Arizona and the state Capitol.