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This week at the Arizona Capitol: Possible clarity on Arizona's 1864 abortion law

Gov. Katie Hobbs last week signed into law the repeal of Arizona’s 1864 near-total abortion ban, but that doesn’t mean the timing of what will and will not be legal with regard to the procedure is settled.

With The Show, as he is every Monday during the legislative session to talk about what to expect this week at the state Capitol, is Howard Fischer of Capitol Media Services.

Conversation highlights

We're possibly going to get some clarity this week on whether the 1864 law will actually take effect. And, and if so when?

HOWARD FISCHER: Well, we know ... the repeal, if you will, will take effect at some point. As you know, all laws take effect 91 days after the end of the session. Well, as you and I have been talking about since January, this session goes on and on and on, you know, like the Energizer Bunny. So theoretically speaking, the law would be repealed in, maybe October. The problem becomes, of course, is that the Supreme Court mandate is likely to take effect before that. Now that goes into what's happening lately. The Planned Parenthood and Attorney General [Kris] Mayes have asked the court for a stay so they can decide whether to take the case to the U.S. Supreme Court. They want 90 days to consider that — which may give them enough of a window there so that there isn't much of a blackout period when abortions once again become illegal.

Now you get go down the rabbit hole of: Why is this a federal issue? This is a dispute between two laws, the 1864 law and which this allows abortion except to save the life of the mother, and the 2022 law that allows abortion up to 15 weeks. Well, the theory is that when the Supreme Court decided the 1864 law takes effect and takes precedence, is they cited a section of title one of the code, which deals with general issues, which also says that a essentially a fetus is considered a human, a person has the same rights as a person at any stage of development.

So they say that shows legislative intent. Only thing is there a federal judge in a different case stayed that, saying it is vague and unconstitutional. And so what Ms. Mayes is saying, what Planned Parenthood is saying, is that you cannot rely on something that's been stayed to support the decision. Which is why they may ask for the U.S. Supreme Court review. I know it's a long way to get there, but we've been wrestling with this now for years.

The reason we're talking about this is [Tuesday] is the deadline for Alliance Defending Freedom — that's the group that was arguing in favor of the 1864 law — they're responding to Attorney General Mayes request for that 90-day stay. Is this the kind of thing that the Supreme Court might try to rule on reasonably quickly?

FISCHER: Well, as you point out the Alliance Defending Freedom, which represents Dr. Eric Hazelrigg and Dennis McGrane, who's the Yavapai County attorney, who have been defending the old law. That's until 4:30 to file a response. My guess is they're going to say, "No, you've had your bite at the apple." Now, two days after that, at 4:30 on Thursday, Mayes and Planned Parenthood get to respond and say, "Yes, we are entitled to that."

Now, how quickly the court will rule, you know, hard to say. You know, they could, you know, rule at 4:31 after looking at all the filings, they could take a week or so. The other thing, quite frankly, that Planned Parenthood may have working for them is that with the repeal — even though it didn't take effect — you could argue that shows legislative intent, that we know the law is going away. Now, we're just talking about timing. And we think that you at the Supreme Court should say, look, given that we don't want to have a period where abortion is legal, then abortion is illegal, then abortion is legal again. We should just allow the state and recognize this is what the people of Arizona want.

We found out last week that the Senate at least is looking to append onto a proposed ballot measure similar to Texas's Senate Bill 4 dealing with border security. Is that something that you're hearing is, is potentially on the agenda for this week?

FISCHER: Well, it's certainly on the agenda for a Senate committee. I don't know if they can then take it to the floor the same day. I'm guessing not, because generally after committee you need to take it to rules and then you need to take it to caucus. And I don't know if that can all happen. But again, as you point out, they're not gonna get out of here any sooner, No. 1. And No. 2 is, if you put it on the ballot, it couldn't happen again until November.

The issue comes down to, we know that there are the votes there for the plan. Because as you point out the bill to do exactly the same thing as Senate Bill 4 in Texas has already been approved and vetoed by the governor. What it says is, look, we, we know we theoretically can enforce federal immigration law that was settled with Senate Bill 1070, which went all the way to the US Supreme Court. But what we're saying is if you enter the country at any point other than at a point port of entry, you can be arrested and sent to jail. And if you agree to be self deport, we will allow you to self deport. Obvious problems with that come down to, at the very least, leaving aside the federal issue is racial profiling. Unless you happen to be standing at the border, how do you know how somebody got in the country legally? That's part of the reason the governor vetoed it.

There's a belief among Republicans that we need to do something at the state level, given what they believe is a lack of attention by Border Patrol and Homeland Security. So they figure, let's give this a try. As you know, the Texas law was approved, it was put on hold. The U.S. Supreme Court said you can enforce it, but then it went back to the state court to a Federal Court of Appeals which said no, you can't enforce it. So that one's on hold. So we have no idea whether, even if the voters were to pass it, whether it could in fact be enforced in Arizona.

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Mark Brodie is a co-host of The Show, KJZZ’s locally produced news magazine. Since starting at KJZZ in 2002, Brodie has been a host, reporter and producer, including several years covering the Arizona Legislature, based at the Capitol.