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Arizona House advances a repeal of the state's near-total abortion ban to the Senate

Three Republicans joined in with all 29 Democrats on Wednesday to support the repeal of the law that predated Arizona’s statehood and provides no exceptions for rape or incest.
Arizona Capitol building
Posted at 2:54 PM, Apr 24, 2024

A proposed repeal of Arizona's near-total ban on abortions has won approval from the state House, clearing its first hurdle two weeks after a court concluded the state can enforce the 1864 law, which only offers an exception for saving the patient's life.

Three Republicans joined in with all 29 Democrats on Wednesday to repeal a law that predated Arizona's statehood and provides no exceptions for rape or incest. The vote came after weeks of mounting pressure on Republicans in a battleground state during a presidential election year.

Republicans had repeatedly used procedural votes to block earlier repeal efforts, each time drawing condemnation from Democratic President Joe Biden, who has made his support for abortion rights central to his reelection campaign. The breakthrough came Wednesday when a second Republican joined all Democrats in voting to overrule the GOP House speaker, who has steadfastly blocked repeal. A third Republican joined to support repeal.

Democrats and the Biden campaign held a news conference Wednesday to continue their push to lay stringent abortion restrictions at the feet of former President Trump and Republicans.

"Make no mistake, Arizonans are living in 1864 now because Donald Trump dismantled Roe v. Wade," said Democratic state Sen. Priya Sundareshan of Tucson. The repeal effort comes a day after President Biden said Trump created a "health care crisis for women all over this country," by imperiling their access to care.

Dozens of people gathered outside the state Capitol before the House and Senate were scheduled to meet, many of them carrying signs or wearing shirts showing their opposition to abortion rights.

Arizona Republicans have been under intense pressure from some conservatives in their base who firmly support the abortion ban, even as it's become a liability with swing voters who will decide crucial races including the presidency, the U.S. Senate and the GOP's control of the Legislature.

The Arizona Supreme Court concluded the state can enforce a long-dormant law that permits abortions only to save the pregnant patient's life. The ruling suggested doctors could be prosecuted under the law first approved in 1864, which carries a sentence of two to five years in prison for anyone who assists in an abortion.

The law had been blocked since the U.S. Supreme Court's 1973 Roe v. Wade decision guaranteed the constitutional right to an abortion nationwide.

After Roe v. Wade was overturned in June 2022, then-Arizona Attorney General Mark Brnovich, a Republican, persuaded a state judge that the 1864 ban could be enforced. Still, the law hasn't actually been enforced while the case was making its way through the courts. Brnovich's Democratic successor, Attorney General Kris Mayes, urged the state's high court against reviving the law.

Mayes has said the earliest the law could be enforced is June 8, though the anti-abortion group defending the ban, Alliance Defending Freedom, maintains county prosecutors can begin enforcing it once the Supreme Court's decision becomes final, which is expected to occur this week.

If the proposed repeal wins final approval from the Republican-controlled Legislature and is signed into law by Democratic Gov. Katie Hobbs, a 2022 statute banning the procedure after 15 weeks of pregnancy would become the prevailing abortion law.

Planned Parenthood officials vowed to continue providing abortions for the short time they are still legal and said they will reinforce networks that help patients travel out of state to places like New Mexico and California to access abortion.

This past summer, abortion rights advocates began a push to ask Arizona voters to create a constitutional right to abortion.

The proposed constitutional amendment would guarantee abortion rights until a fetus could survive outside the womb, typically around 24 weeks. It also would allow later abortions to save the parent's life, or to protect her physical or mental health.

Republican lawmakers, in turn, are considering putting one or more competing abortion proposals on the November ballot.

A leaked planning document outlined the approaches being considered by House Republicans, such as codifying existing abortion regulations, proposing a 14-week ban that would be "disguised as a 15-week law" because it would allow abortions until the beginning of the 15th week, and a measure that would prohibit abortions after six weeks of pregnancy, before many people know they're pregnant.

House Republicans have not yet publicly released any such proposed ballot measures.