End of legislative session guarantees death of Arizona’s 1864 abortion law

Arizonans gather to rally for reproductive rights at the Wesley Bolin Memorial Plaza on Tuesday, Dec. 12, 2023. The group spoke about the critical need for abortion access and denounced a near-total ban from 1864 being debated across the street in the Arizona Supreme Court. Photo by Gloria Rebecca Gomez | Arizona Mirror

Arizona’s strict 1864 abortion ban will never go back into effect, as lawmakers adjourned for the year on Saturday, meaning a bill repealing the ban will become effective before the court order that would have revived the law.

In April, the Arizona Supreme Court upended the state’s political landscape and thrust health care providers into legal turmoil when it ruled that a near-total abortion ban from 1864 could once again be enforced. The 160-year-old law was slated to go into effect in September, after Arizona Attorney General Kris Mayes won a three-month delay.

After weeks of debate, lawmakers voted to repeal the law in May, but such legislative actions only become effective 90 days after the end of the annual legislative session.

Reproductive rights advocates had worried the legislature would stall its adjournment, meaning the ban would have gone into effect before its repeal, or before voters could weigh in on a likely November ballot measure to enshrine abortion rights in the state constitution.

Dr. Gabrielle Goodrick, medical director of Camelback Family Planning, one of just nine clinics in the state that offer abortion services, said that she was relieved to hear that the 1864 law will no longer threaten to halt her work.

“I’m relieved that there won’t be any complications or interruptions in services,” she said. “I’m relieved for my patients and my staff.”

It would have been strange for the state to enforce a law that the legislature has already agreed to repeal, she said. But, Goodrick added, the nullification of the Civil War-era law doesn’t mean women no longer have to contend with restrictive abortion laws.

The law, which was previously blocked by the 1973 Roe v. Wade Supreme Court decision legalizing abortion, mandated a 2- to 5-year prison sentence for any doctor who performed an abortion for any reason other than saving a woman’s life.

When the Supreme Court overturned Roe in 2022, it led to weeks of political turmoil and uncertainty for women and providers as courts and elected officials disagreed as to whether the 1864 law or a more recent 15-week abortion ban was in effect.

That all changed on Saturday, when Arizona lawmakers rang in the last day of the legislative session and ensured that most state laws passed this year, including the repeal, will go into effect Sept. 14, according to the Arizona Attorney General’s office. And two court orders had delayed the near-total ban’s reimplementation until Sept. 27, days after the repeal will have already been made official.

One of those court orders is a 90-day delay requested by AG Kris Mayes, a staunch proponent of abortion access who asked the Arizona Supreme Court to freeze its April ruling until her office could decide whether to pursue an appeal from the U.S. Supreme Court.

Richie Taylor, Mayes’ spokesman, declined to comment on whether Mayes will follow through with an appeal now that the repeal can go into effect, but said that the office is still evaluating the legal issues at stake.

Part of the state supreme court’s reasoning for reviving the 1864 near-total ban relied on a fetal personhood law passed in 2021 that continues to be litigated in federal court. Mayes argued that using the 2021 law to reimplement the 160-year-old law undermined federal rulings and threatened to impact the ongoing case.

Arizona is under a 15-week gestational ban, with no exceptions for rape or incest. Only women facing imminent death or irreversible bodily harm can obtain an abortion after the gestational deadline. And a separate law prohibits all abortions sought for the sole reason of a fetal genetic anomaly.

Goodrick said that patients who visit her clinic are often unaware a 15-week ban is in place, and are devastated and panicked when they are told they cannot receive an abortion unless they travel out of state — an option that is unfeasible for many women.

Abortion advocates are setting their sights on November to eliminate that remaining abortion ban and restore the procedure’s legality up to 24 weeks and beyond, if a doctor deems it necessary to protect a patient’s life, physical or mental health. The Arizona Abortion Access initiative, which would enshrine abortion as a right in the state constitution, has far exceeded the number of signatures it needs to gather to qualify for the ballot.

Campaign spokeswoman Dawn Penich said collection efforts are winding down in preparation for the July 3 deadline to turn in signatures. Penich added that, despite the legislature’s repeal of the 1864 law, the abortion rights initiative is still needed to ensure such threats never arise again.

“When it comes to extreme abortion bans, what’s important to us to remember is that as long as these decisions are the purview of the legislature, our rights are always at risk, and the political gameplay and flip flopping we saw this session will continue to threaten our access to essential healthcare,” she said, in an emailed statement. “It’s as important as ever that we enshrine the right to access abortion care in the state Constitution to finally put an end to political interference into private medical decisions about pregnancy and abortion.”

Athena Salman, director of Arizona campaigns for Reproductive Freedom for All, an abortion advocacy group that is part of the coalition to put abortion rights on the ballot, reiterated the importance of passing the initiative in November and said the protracted battles over abortion laws between Republicans and Democrats highlights the need to turn the state blue.

Arizona Democrats and reproductive rights organizations are hoping abortion, which has proven to be a mobilizing issue in other red states like Kentucky and Kansas, will convince voters to award the party a trifecta – the abortion rights measure and Democratic control of the legislature. Republicans currently hold both legislative chambers with a razor-thin, one-vote majority.

“Let’s be clear, Arizona is still under an abortion ban and has over 40 laws restricting abortion care. These last few months in Arizona demonstrate what we must do this November,” Salman said, in an emailed statement. “Reproductive Freedom for All Arizona and our members are laser-focused on enshrining the right to abortion care in our state constitution, electing reproductive freedom champions up and down the ballot, and flipping the state legislature, finally ending anti-abortion extremists’ majority by delivering a reproductive freedom majority in both state chambers.”

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