Republicans thwarted attempts to repeal Arizona’s 1864 abortion ban, saying they need more time

By Randall Perry On Apr 10, 2024

A day after the Arizona Supreme Court ruled to reinstate a near-total abortion ban from 1864, Republican lawmakers in the legislature blocked multiple efforts to repeal the law, saying they need more time to consider the repercussions of doing so.

On Tuesday, the state’s high court overturned the decision of an appeals court that preserved a 2022 law limiting abortions up to 15 weeks and concluded that a Civil War-era law which punishes doctors with prison time for performing an abortion should be the law of the land.

The ruling ignited a political firestorm, with Republicans across the state quickly issuing statements denouncing the 1864 law. Opponents of the near-total ban, including some GOP lawmakers and Gov. Katie Hobbs, called on the legislature to repeal the 1864 law. Under the high court’s ruling, the ban will go into effect in June.

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A movement to repeal the 1864 law emerged in the legislature on Wednesday, with one Republican lawmaker spearheading the first failed attempt. Rep. Matt Gress, R-Phoenix, made a motion to suspend the chamber’s rules and force a final vote on House Bill 2667, which would repeal the Civil War-era law. That bill, along with another that sought to strike down both the 1864 law and a prohibition on advertising abortion services, were introduced in January by Rep. Stephanie Stahl Hamilton, a Democrat from Tucson, but Republicans refused to consider them.

Gress’ attempt to push through the repeal was foiled by Rep. David Livingston, R-Peoria, who immediately made a substitute motion to recess. Republicans voted to recess, and Democratic lawmakers, all of whom were dressed in green in a nod to the abortion rights movement, erupted into shouts of “Shame!” and “Save women’s lives!”

Once the House returned from a short break, Stahl Hamilton made another attempt at forcing a vote on the proposal. The Democrat denounced the state Supreme Court’s decision as extreme and urged her colleagues to support the bid to repeal.

“Should the 1864 ban on abortion remain the law in Arizona, people will die,” she warned. “We are here as public servants, we are here as representatives and, right now, in this moment, we need to think about the millions of people in Arizona whose lives are affected by the people in this body.

“Are we here to serve the public or are we here to enact laws that have such constraints that the consequences are dire?”

That motion also failed, as Republicans used a procedural move to instead adjourn until April 17 instead of allowing a vote on whether or not to repeal the law. Majority Whip Teresa Martinez criticized the earlier reaction from Democrats as “childish” and “insurrectionist behavior.” And lawmakers, she added, should have more time to consider the court’s ruling and its consequences before voting.

“The Arizona Supreme Court’s 47-page ruling was released just yesterday, and 24 hours later, chants from the floor ‘shame, shame.’ That is simply because we do not want to repeal the pre-Roe law before we have a conversation about it,” she said.

Speaking to reporters afterwards, House Speaker Ben Toma said he won’t support repealing the 1864 law. The Republican from Glendale, who is running to represent a ruby red West Valley district in Congress, said that the issue of abortion is too fraught with moral implications to legislate on so quickly.

“We’ve had a little over 24 hours since this came out,” he said. “This is a very emotional, charged complicated issue. For many of us, we’re talking about protecting the lives of the unborn, too, which some of us fundamentally and ethically have a really big problem with. It’s completely unfair to rush this through.”

Toma and Senate President Warren Petersen, also a Republican, both urged the Supreme Court to enact the 1864 abortion ban.

Toma added that, even if the bill to repeal the 1864 law passes, it will make little difference. Because the bill was never given a hearing in the legislature, attaching an emergency clause to it that could make it effective immediately isn’t an option. Like all other laws, the bill would only be implemented 90 days after the current legislative session ends. And that could be months after the court’s ruling reinstating the Civil War-era law takes effect.

Instead, Toma said, the push from Democrats to pass the repeal was simply political opportunism, as Democrats are seeking to highlight reproductive rights ahead of the November election.

But the bill is likely to make it back onto the floor at some point, Toma assured reporters, though he didn’t specify when. Nor would he share how many Republicans besides Gress had expressed support for repealing the Civil War-era abortion ban and instead letting the 2022 15-week gestational ban take effect.

Democratic leaders decried the stonewalling from Republicans. Minority Leader Lupe Contreras, D-Avondale, rebutted the claims that more time is needed to consider the bill by pointing out that it has been available to review since the beginning of the legislative session. And the bill is hardly complicated: It is a single sentence long and merely repeals the near-total ban from state law.

Republicans are hesitating, Contreras said, because they’re fearful about the political backlash from conservative voters.

“It’s nothing new,” he said. “The only thing is the narrative has changed on their end. They now are pushed, their feet are to the fire, and they’re looking at what could happen.”

Rep. Oscar De Los Santos, the assistant minority leader, added that those Republicans who are now supporting the repeal are merely trying to avoid the fallout from an unpopular abortion ban. And even despite that limited support, the Laveen Democrat said, the GOP majority failed to deliver a repeal.

“They failed the people of Arizona when they failed to co-sponsor (the bill),” he said. “They failed the people of Arizona when they failed to give it a committee hearing. And they failed the people of Arizona again today. It is disgusting. And any effort to flip that narrative is a craven, spineless attempt to save their political careers.”

Republicans take conflicting positions

Gress told reporters after his initial motion that he was committed to repealing the 1864 law. The Phoenix Republican was among the first to speak out against the 1864 law when the state Supreme Court’s ruling was released.

But reproductive rights advocates criticized his stance as insincere, pointing out that the freshman lawmaker proposed several laws last year that would have codified fetal personhood into state law, effectively banning all abortions. Among those laws was one to allow pregnant women to drive in the HOV lane and another to extend child support payments to the date of the first positive pregnancy test.

Gress, who represents a highly competitive district and is seeking reelection this year, dismissed that criticism, saying that the bills were simply mischaracterized and actually intended to help women.

Gress said there are enough Republican lawmakers in both chambers to pass a repeal. However, he said he wouldn’t entertain the possibility of removing Toma as speaker to make that vote a reality.

“We have people on our side of the aisle that feel very strongly that women should not be condemned to carry out a pregnancy to term, especially victims of rape or incest and certainly (when it endangers) the life of the mother,” he said. “Arizonans are on the same page: Reasonable restrictions on abortion, 15 weeks, is where most of us are at, with exceptions.”

The 15-week gestational ban that was enacted in 2022, which is the alternative supported by Arizona Republicans, includes no exceptions for rape or incest.

While all 28 Democrats in the lower chamber support repealing the 1864 law, three more votes are needed to form a majority coalition that can make the motion to introduce the bill to do so. That means peeling away Republican lawmakers. And another GOP member who signaled interest in supporting that bid was Rep. David Cook, R-Globe, who said the near-total ban doesn’t reflect the will of modern Arizonans.

“In the time that the territorial law was done, in my business, we used to hang cattle thieves,” said Cook, who is in the ranching industry. “We don’t do that anymore. We’ve progressed as a state, and there’s a lot of things that need to be cleaned up, and this is one of them.”

Cook was among those who voted for the 15-week law two years ago. That law included a provision that stated it doesn’t repeal any laws — and specifically the 1864 near-total ban — that came before it. The Arizona Supreme Court leaned heavily on that provision in its reasoning for why the Civil War-era law should be reinstated.

And during Wednesday’s motion to adjourn, instead of voting against it and forcing consideration of the repeal bill, Cook supported ending the legislature’s work for the week. In an interview with the Arizona Mirror afterwards, Cook said party leadership has assured him they will hold closed-door meetings to work on legislation of its own. The one-sentence Democratic bill, he said, might not be the right move.

“The bill that Democrats were trying to move, I had never read. That bill never had a hearing,” he said. “Someone can tell me what the bill does, but I didn’t feel comfortable not knowing what the bill actually says it does. We are going to do a bill, and I want to make sure it’s the right bill for me and my constituents and the people.”

Push in the upper chamber fails, too

In the Senate, a similar effort to repeal the 1864 law was also stopped in its tracks by Republican leaders. Sen. Anna Hernandez, D-Phoenix, sought to add an amendment repealing the law to a Republican-led bill criminalizing the visual depiction of bestiality.

Because no bills were introduced in the Senate to repeal the near-total ban, an amendment to another bill was the only avenue left.

But Hernandez’s attempt to introduce the amendment was blocked by Senate President Warren Petersen, who quickly motioned to adjourn rather than recognizing Hernandez or Minority Leader Mitzi Epstein, who also sought to offer the amendment.

“The @AZSenateGOP refused to recognize me to speak on the floor and refused to allow me to make a motion to repeal the territorial abortion ban in Arizona,” Hernandez posted on X, formerly Twitter, afterwards. “By their actions, the message from this chamber is that they are so pro-life they will kill you.”

Epstein, D-Tempe, told reporters afterwards that Democrats will continue working to repeal the 1864 law. By contrast, she said, Republicans have consistently failed to show any interest in doing so.

“Ever since the Dobbs decision came down, they could’ve worked with us to repeal this horrible ban, and they have not,” she said. “I do not trust them to look out for the health of the people of Arizona.”