Once again, Arizona Republicans block efforts to repeal the 1864 abortion ban

A bid to repeal Arizona’s near-total abortion ban that was written when Abraham Lincoln was president will move forward in the state Senate, while Republicans in the House of Representatives for the second week in a row blocked efforts to repeal the law. 

On Wednesday, two Senate Republicans supported a Democrat-led move to introduce a bill to strike down the state’s near-total ban on abortions from 1864. The law is set to go back into effect in June, after the Arizona Supreme Court ruled last week that it supersedes a 15-week gestational law passed in 2022. 

Shortly after that ruling was released, Democrats in both chambers of the state legislature made several attempts to repeal the law, with no success despite limited support from across the aisle. 

But that luck changed this week, when Sen. Shawnna Bolick, R-Phoenix, and Sen. T.J. Shope, R-Coolidge, voted in favor of green-lighting the late introduction of a measure to eliminate the 1864 law. Efforts from the rest of the GOP majority to delay a vote on whether to give that permission were shot down with the help of Shope and Bolick. 

By a vote of 16-14, the new bill was allowed to be introduced. But it may yet be weeks until it’s ready to receive a final vote. While the motion requires the bill be brought to the floor for a vote, where it’s likely to pass, it will take three working days to do so. And since the Senate is only meeting once per week for the foreseeable future — its next workday is April 24 — any possible vote isn’t likely until May. 

Sen. Ken Bennett, R-Prescott, who voted against delaying a vote on whether to permit the bill’s introduction but later voted against introducing the bill itself, said that he opposes repealing the 1864 law but feels it’ll ultimately come to pass. And, he added, doing so would likely help dampen support for the Arizona Abortion Access Act, which seeks to enshrine abortion as a right in the state constitution and appears certain to appear on the November ballot. 

“I’m not planning to vote for repeal,” Bennett said. “But I think if that’s where we end up — which I think that’s where we’re headed, given a couple of my caucus members — I think that gives us the best chance of defeating the Abortion Access Act, which I think goes too far.”

House GOP blocks repeal bill for second time

Hours before the effort in the Senate was successful, Democrats in the House were once again foiled in an attempt to force a final vote on whether to do away with the 1864 near-total ban. 

Unlike in the Senate, a bill does exist in the lower chamber, and lawmakers need only temporarily amend the chamber’s rules to allow for it to be voted on. But a motion to do just that from Rep. Stephanie Stahl Hamilton, D-Tucson, was cut short by Rep. Jacqueline Parker, R-Mesa, a staunch abortion opponent who used a procedural move to derail the effort. 

Parker argued that such a motion required the support of House Speaker Ben Toma, R-Glendale. Toma, who is campaigning to represent a ruby red West Valley district in Congress, has repeatedly stated his opposition to repealing the 1864 law, and on Wednesday he reiterated that stance. 

The 1864 law has been reaffirmed several times since it was first adopted when Arizona was still a territory, Toma said, and it is too early to decide whether the legislature should eliminate it, especially given that it is still being considered by the courts. 

The state Supreme Court ruled that abortion rights proponents have two weeks to decide whether to challenge the law based on early arguments around its constitutionality. 

Toma added that abortion is a morally fraught issue for many. 

“Abortion is a very complicated topic. It is ethically, morally complex,” he said. “I would ask everyone in this chamber to respect the fact that some of us believe that abortion is, in fact, the murder of children.”

All 29 Democrats and one Republican, Rep. Matt Gress of Phoenix, voted to allow the rule change and proceed with considering the repeal bill. But the other 30 Republicans voted against the move, and the 30-30 split doomed the attempt.

Shortly after their initial attempt was shut down, Democrats made another move to force a vote on the repeal, but that was quickly quashed under the same grounds. Again, the attempt failed on a 30-30 vote.

Minority Leader Lupe Contreras, D-Avondale, told reporters afterwards that the party remains committed to pushing for a vote on the bill. 

“This is not going away,” he said. “The people want it. We will keep doing the people’s work and this is part of it.” 

House Republicans react to Senate

Shortly after the Senate’s action on the move to repeal the 1864 law, lawmakers in the lower chamber showcased the fractures between Republicans who support striking down the law and those who want the abortion ban to remain in place. 

Gress, who is seeking reelection in a swing district and has sought to position himself as moderate on abortion since the state Supreme Court’s ruling was released, said he looks forward to the day when the House can vote on the Senate’s repeal bill. 

“I am encouraged that very soon — potentially next week — we will have a vote to repeal,” he said. “Make no mistake about it, this law will be repealed. There are enough votes in this chamber to repeal the territorial law. It will happen, it’s just a matter of time.”

But Rep. Alexander Kolodin, R-Scottsdale, responded by celebrating the House’s earlier votes blocking the repeal bill and saying he’s never been more proud of action the chamber had taken.

“We did our duty. We held the line for what we, as Republicans, know is right,” he said. 

A last-minute motion from Rep. Charles Lucking, D-Phoenix, to eliminate a House rule mandating Toma’s approval of any effort to force a final vote on a bill was shut down by Republicans, including Gress, who voted instead to adjourn. Approving that rule change could have paved the way for a final vote of the House’s repeal bill. 

After Lucking criticized Republicans for choosing not to take action, Toma rebutted that rushing a vote on repealing the law would be the wrong thing to do, given the morally fraught issue it involves. 

“Rushing to judgment on something as heavy, as complicated, as emotionally and ethically complex as this debate serves no purpose whatsoever,” he said, before voting to adjourn.  

Toma noted that, even if the repeal bill had been passed today, it wouldn’t go into effect until 90 days after the end of the legislative session. And that could be months after the law actually becomes enforceable in June. 

“Doing this today is no different than doing this a month from today,” Toma said. “No different whatsoever because this will only take effect 90 days after sine die.”

Adding an emergency clause to a successful repeal would allow it to go into effect immediately, upon the governor’s signature, but to do that requires a supermajority vote in the legislature. That’s an unlikely prospect, given that Democrats in the House would need to peel away 11 Republicans to do so.

Abortion opponents exert pressure

Just two hours before lawmakers in the House met to discuss whether to repeal the 160-year-old law, anti-abortion protestors gathered in the Capitol courtyard to call for its preservation. Attendees handed out miniature baby figurines and plastic yellow flowers to symbolize life.

Kaylee Stockton looked on as her one-year-old son, Colton, shuffled through a pile of pro-life posters, holding up brightly colored ones for his mom’s approval. The Grand Canyon University student said she was told abortion was an option when she became pregnant as a teenager, but is glad she didn’t take that route. Now, she’s an activist in the pro-life movement, as a captain in the Students for Life Action group. Stockton called the state Supreme Court’s ruling life-saving and blasted Republican lawmakers who have sought to distance themselves from it. 

“A lot of lawmakers are abandoning their values to get reelected,” she said. “And that’s shameful.”

Two lawmakers with a religious background, Rep. Lupe Diaz, R-Benson, and Rep. David Marshall, joined the group to express their support for the protest. Both are pastors and staunchly anti-abortion. 

Marshall, a Republican from Snowflake, highlighted what he saw as an ironic part of the law’s history. 

“People don’t realize, the 1864 law was codified in 1977, under Democrats,” he said, to a protester. 

The near-total ban was recodified several times since it was first passed, along with the rest of Arizona’s criminal code, including once in 1977 when there was a Democratic governor and split control of the legislature. At the time, under the protection of Roe v. Wade, the law was considered unenforceable. Since the state Supreme Court’s ruling earlier this month to reinstate the 1864 law, some Republicans have sought to shift the blame for the law’s continued existence onto Democrats. 

Marshall added that repealing the 1864 law was a nonstarter with him because doing so would undermine the legitimacy of other long-standing laws. 

“Are we going to repeal the Constitution?” he asked. “The 1865 slave law? Where does it stop?” 

After a round of prayers and songs, the more than three dozen protestors packed the House gallery, where they watched proceedings and periodically cheered on Republican lawmakers. 

In his final comments before the chamber adjourned for the week, Kolodin referenced the presence of those in the gallery, highlighting their support of pro-life Republicans who worked to block the repeal of the 1864 law.

“We resisted the perceived popular pressure and those in the gallery let us know that the people of Arizona of good faith will stand with us when we do that,” he said.

House Republicans stall on rules change, look to ballot proposals

The effort to strike down the 1864 law in the House hinges on the success of a procedural motion that could allow the repeal bill to be voted on. And while some Republicans have signaled interest in overturning the 1864 law itself, they have largely failed to vote in favor of adopting a temporary rule change that could allow it to be put up for a vote in the first place. 

Because the bill was never heard in any legislative committee, where Republican chairs decide which bills move forward and which stagnate, a special rule needs to be adopted before a vote can be held. 

So far, Gress is the only Republican who has been willing to side with Democrats to support the adoption of that rule. The freshman lawmaker is seeking reelection in a swing district that has already punished anti-abortion politicians: Former senator Nancy Barto, who authored the 15-week gestational law that led to the eventual upholding of the 1864 near-total ban, lost her reelection in 2022 to a pro-choice Democrat. 

The two other House Republicans who have publicly expressed their support for a repeal, Rep. David Cook, R-Globe, and Rep. Tim Dunn, R-Yuma, both voted against the bid to amend the chamber’s rules to bring up the repeal bill for a vote. 

Speaking to reporters after the failed attempt in the House to push through a repeal, Gress said some Republicans need more time before they can overcome their qualms with the “procedural hurdle.” But the support to repeal the law is there, he insisted. 

“There are Republicans who want to repeal the territorial ban,” he said. “That vote will happen, and it will pass and the bill will be sent to the Governor’s Office. It’s a matter of time.” 

With the Senate taking some action on moving a repeal bill, it’s more likely that the House will vote on the upper chamber’s version instead of passing its own, though doing so will still requiring using procedural moves to go around Toma. 

Leaked documents detail House GOP strategy to send competing abortion measures to the 2024 ballot

Instead, House Republicans signaled on Wednesday that they were focusing on trying to compete with the abortion access initiative that’s expected to go before voters in November.  Earlier this week, a plan from the GOP majority in the House was leaked outlining their intent to author competing ballot initiatives in an attempt to both stifle support for the abortion access act and circumvent criticism that the party isn’t acting on repealing the 1864 law. 

On Wednesday, Kolodin indicated that a final decision from House Republicans on which ballot plan to pursue could come as soon as tomorrow. After that, he said, the regulation of abortions in the state will be up to Arizona voters. 

“Tomorrow, or very soon thereafter, Republicans will be presenting a Republican plan to deal with this issue and provide the voters of Arizona with choices,” he said. “The ultimate folks who are going to make the call are the people of the state of Arizona.”

Toma, however, struck a more hesitant tone, saying the proposals are still being considered by lawmakers and the legislature has plenty of time to send its final choice to the ballot. 

“We have plenty of time to address the issue, we’re not having this conversation…in September or October, we’re having it now, in April. So there’s plenty of time to talk about this and figure out what does make sense to send to the voters,” he said after the floor session.

***UPDATE: This story has been updated with additional comments and legislative action.