Arizona Senate votes to repeal 1864 abortion ban. What it means, and what’s next.

Arizona Senate votes to repeal 1864 abortion ban. What it means, and what’s next.

The Arizona state Senate voted Wednesday to repeal a Civil War-era ban on nearly all abortions that — because of procedural hurdles — remains on track to temporarily take effect in June.

The vote in the Republican-led Senate followed passage in the Arizona House last week. The ban briefly went into effect after the U.S. Supreme Court overturned Roe v. Wade in 2022 before being blocked by the courts, and was revived by the state’s highest court April 9 in a ruling that spurred public outcry and threatened to upend politics in the state during an election year.

The repeal of the 1864 law is the latest twist in the battle after the decision in Dobbs v. Jackson Women’s Health Organization to determine the future of reproductive rights in the state, setting the stage for Arizona to return to a 15-week abortion ban and for voters to potentially decide whether to enshrine abortion rights in the state’s constitution in a November ballot measure. Democratic Gov. Katie Hobbs is expected to sign the repeal into law Thursday, but the timing for when it can legally go into effect could still complicate abortion access in the state.

Here’s where things stand.

What the legislation does

• In April, Arizona’s Supreme Court upheld a Civil War-era measure that bans and criminalizes almost all abortions except in cases to save a pregnant person’s life.
• The legislation approved by the state House and Senate repeals this near-total abortion ban.
• When Hobbs signs the bill into law, a 2022 statute banning individuals in the state from terminating a pregnancy after 15 weeks is set to become Arizona’s prevailing abortion law.
• Two Republicans, state Sens. T.J. Shope and Shawnna Bolick, joined Democrats in a 16-14 vote repealing the near-total ban.

Why it was needed

The legislation being repealed took Arizona back to a territorial-era, near-total abortion ban — something that is not popular with a majority of residents. A New York Times-Siena College poll in October, for example, found that 59 percent of Arizona’s registered voters said abortion should be mostly or always legal; 34 percent said it should be mostly or always illegal.

Republicans who hold narrow majorities in both chambers of the state legislature had been facing mounting pressure to repeal the near-total ban, with some Republicans — including former president Donald Trump and U.S. Senate candidate Kari Lake — saying the court ruling allowing the near-total abortion ban to take effect had gone too far. The 15-week ban established in 2022 was suggested as a middle ground by some in the party.

This reproductive rights battle is taking place in a presidential election year in a pivotal state, where voters are likely to play a decisive role in who wins the White House and shift the balance of power in Congress.

Where Arizona’s abortion law stands

The Arizona Supreme Court’s ruling did not take effect immediately because of a legal stay, but the near-total abortion ban is set to be in place no earlier than June 27, according to the state attorney general’s office.

After the Arizona Senate’s vote, Planned Parenthood Arizona filed a motion requesting that the state Supreme Court avert a pause in abortion care. If the court denies the request, the near-total ban will go into effect 45 days later, Planned Parenthood said in a statement.

As it stands, the repeal is also not expected to go into effect immediately.

After being signed into law by the governor, the repeal can only take effect 90 days after the state legislature’s final adjournment. The legislature is expected to adjourn in the summer. Last year, the legislature had the latest adjournment in its history, July 31.

Richie Taylor, communications director for the attorney general’s office, said ahead of the Senate vote that “absent any successful court challenges, the ban could take effect for a period of time this summer.”

In an interview after Wednesday’s vote, Hobbs said she hopes the Arizona Supreme Court delays implementation of the 1864 measure, given the legislature’s votes to repeal the law and her expressed intent to sign the repeal measure into law.

“I do believe there will be a motion to stay the ban and the court should listen to the legislative intent on this,” Hobbs said. She added that the debate around the old abortion law has sown “chaos and confusion” among Arizonans about their rights and their own lives.

Abortion rights on the ballot

Arizona is on track to have a measure on ballots this November that would enshrine the right to an abortion in the state’s constitution.

Arizona for Abortion Access, a coalition of abortion rights advocates, is behind the ballot measure effort. The group said in early April that it had more than enough signatures to qualify for the ballot. A simple majority is required to pass the ballot measure in November.

Having abortion rights on the ballot in the battleground state could sway other consequential elections taking place in November.

Rep. Ruben Gallego (D) and Lake are in a tight race for a U.S. Senate seat, which could determine the political majority in the chamber. In 2020, Joe Biden won Arizona by only 0.3 percentage points, becoming the first Democratic presidential candidate to win there since 1996.

Reaction

Hobbs said in a statement after the state Senate vote that she was glad to see the chamber move to repeal the near-total ban.

“Arizona women should not have to live in a state where politicians make decisions that should be between a woman and her doctor,” Hobbs said. “While this repeal is essential for protecting women’s lives, it is just the beginning of our fight to protect reproductive healthcare in Arizona. I will continue to call on the legislature to pass the Arizona Right to Contraception Act and protect [in vitro fertilization] from ongoing attacks. And I encourage every Arizonan to make their voices heard this November when abortion rights will be on the ballot.”

In their statements posted on X, two other Arizona Democrats, Gallego and Sen. Mark Kelly, similarly expressed that the fight is not over.

“This is an important step, but our work isn’t done,” Gallego wrote. “Arizona women deserve better.”

In a statement through Biden’s reelection campaign, Vice President Harris blamed Trump — who has taken credit for appointing U.S. Supreme Court justices who helped to overturn Roe — for creating “a state of chaos and cruelty” for women across the country. She also noted that as “Arizona Democrats have worked to clean up the devastating mess created by Trump and his extremist allies, the state’s existing ban, with no exception for rape or incest, remains in effect.”

Cathi Herrod, president of the Center for Arizona Policy, a conservative nonprofit, said in a video from the state capitol that the vote marked “a sad day.”

Arizona state law, Herrod added, “will now not be protecting the lives of unborn children or the well-being of mothers.”

What’s next

The Senate has to send the bill back to the House as a matter of legislative procedure. And the House clerk is expected to transmit the bill to the governor today, according to a legislative staffer. Hobbs said Wednesday that she looks forward “to quickly signing the repeal into law” once it comes to her desk.

The Arizona Supreme Court has rejected a request by Attorney General Kris Mayes (D) to reconsider its ruling implementing the near-total abortion ban. Mayes has asked that court to issue a stay on the case that upheld the territorial law, as her office decides whether to ask the U.S. Supreme Court to review the state court’s recent decision.

Mayes and several county attorneys have said they will not prosecute abortion cases under the 1864 ban.

Caroline Kitchener contributed to this report