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Arizona lawmakers vote by a narrow margin to repeal 1864 near-total abortion ban

The Arizona Senate voted on Wednesday to repeal the Civil War-era near-total ban on abortion that had been recently revived by a court ruling, setting the stage for it to come off the books later this year.

The repeal passed by a narrow margin — 16 ayes and14 nayes — with two Republicans joining Senate Democrats.

The repeal bill goes soon to Democratic Gov. Katie Hobbs, who has promised to sign it. A spokesman for Hobbs confirmed she’ll sign the bill Thursday.

But lawmakers lacked the votes to make the repeal effective immediately, meaning there could be uncertainty for months about whether it can still be enforced.

Newly-signed bills don’t go into effect until 90 days after the end of the legislative session. It is still unclear when the ongoing session will end as the Legislature still needs to pass a state budget, and Republican legislative leadership and Hobbs are still in the early stages of those negotiations. Last year, the session did not end until July 31.

That delay could result in the near-total ban going into effect before the repeal takes it off the books.

“They should have repealed it a long time ago so we wouldn't be in this position,” Hobbs said last week. “Unfortunately, it's not possible to get this repeal enacted right away.”

The 1864 law passed when Arizona was a U.S. territory and outlawed abortions except to save the life of the mother. It remained effectively dormant during the decades that Roe vs. Wade enshrined a federal right to abortion. 

→  Christian conservatives wrestle with shifting Republican stance on Arizona abortion ban

Months before that was overturned by the U.S. Supreme Court, Arizona passed the state's 15-week ban, except to save the life of the mother. And at the same time, it voted to keep the 1864 law on the books as well.

"I don't want us honoring laws about women written during a time when women were forbidden from voting because their voices were considered inferior to men," said Sen. Eva Burch (D-Mesa).

Sen. Shawnna Bolick (R-Phoenix), one of the two Republicans who voted for repeal over the objections of her GOP colleagues, suggested leaving the territorial era law in place will help abortion rights groups pass an initiative enshrining broader abortion protections in the state Constitution.

She also shared her own personal story of miscarriage to make the point that pregnancies are complicated and the choice to have an abortion is not as simple as some make it seem.

"As a pro-life myself, we should be pushing for the maximum protection for unborn children that can be sustained over time," Bolick said.

Sen. Jake Hoffman, a Queen Creek Republican who also heads the far-right Freedom Caucus, chastised Bolick and Sen. T.J. Shope (R-Coolidge) for breaking ranks and helping Democrats repeal the ban.

“Our job as humans, our job as people is to defend and protect the most vulnerable to defend and protect those who can’t speak for themselves,” Hoffman said.

Hoffman also attempted to amend the repeal bill to require abortion providers to report cases of rape and incest to law enforcement, but his motion was determined to be out-of-order by the Senate president. 

It's still unclear when the old ban could take effect. 

Arizona Attorney General Kris Mayes estimated that ongoing legal maneuvers have delayed the effective date of the 1864 ban to June 27. Mayes has filed a request with the state Supreme Court to hold off on its mandate in the case, which could delay enforcement and possibly close the gap.

She has vowed in the meantime not to enforce the old ban — though local prosecutors could try to put that to a test.

On Wednesday, Planned Parenthood Arizona filed a similar motion asking the state Supreme court to delay issuing a final order – a mandate affirming their ruling that would allow the territorial ban to take effect. Hobbs added a declaration to the filing assuring the court that she will sign the bill.

Planned Parenthood wrote that the court’s April decision “rested largely on a desire to defer to the Legislature’s purported intent.”

“Exercising this restraint, in extraordinary circumstances such as these, will give effect to the will of the Arizona electorate, ease the burden on the state’s health care providers, and save the health and lives of countless Arizonans,” the filing continues.

Meanwhile, pro-abortion rights groups are working to put an amendment enshrining abortion access into the state constitution to a vote in November. In a statement, staunch anti-abortion lobbyist Cathi Herrod said her goal is now to stymie Democrats’ efforts to pass that ballot initiative.

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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.