Arizona Republicans Thwart Attempts to Repeal 1864 Abortion Ban

A decision by Arizona’s highest court upholding an 1864 ban on nearly all abortions created chaos and confusion across the state on Wednesday. As abortion providers were flooded with phone calls from frantic patients, Republican lawmakers at the State Capitol blocked efforts to undo the ban, prompting angry jeers from Democrats.

Democrats, who seized on the decision to resurrect the 160-year-old ban as a pivotal election issue, tried to push bills through the Republican-controlled Legislature to repeal the ban, a move they said would protect women’s health and freedom, and also force Republicans to take a formal vote on the law.

But Republican leaders in the Senate removed one bill from the day’s agenda on Wednesday, legislative aides said. In the House, a Republican lawmaker who had called for striking down the law made a motion to vote on a Democratic repeal bill that has sat stalled for months. But Republican leaders quickly scuttled that effort by calling for a recess, and later adjourned until next Wednesday.

Democrats on the Senate floor yelled “Shame!” and “Save women’s lives!” as their Republican colleagues filed out of the chamber.

“I don’t see why we wouldn’t move forward,” said State Senator Anna Hernandez, Democrat of Phoenix. “Are they serious about this or are they not?” she said of the Republicans. “Are they just backpedaling when they realize they’re on the losing side of a policy battle?”

Despite the pressure from Democrats and some Republicans to undo the law, it was uncertain whether Republican leaders, who narrowly control both chambers of the Legislature, would allow any immediate action on proposals to repeal the ban.

Representative Teresa Martinez, a Republican and abortion opponent, criticized Democrats for trying to force a vote a day after the court’s ruling. She called their chants and shouts extremist and insurrectionist behavior.

“We do not want to repeal the pre-Roe law without first having a conversation about it,” she said in a floor speech. “There is no reason to rush on this very important topic. We must listen to all viewpoints thoroughly. We cannot do that when our colleagues are acting in the way they did this morning.”

The Senate president and House speaker, both Republicans, issued a joint statement emphasizing that the court’s ruling had not yet taken effect and probably would not for weeks, as the legal fight over the 1864 law heads back to a lower court for additional arguments over its constitutionality.

They said they were reviewing the ruling and would listen to their voters to determine what the Legislature should do. But Axios reported that the House speaker, Ben Toma, opposed a repeal and said that he would not allow a vote on it.

Democrats say they have limited time and ways to repeal the law because it is late in Arizona’s legislative session.

The decision and subsequent backlash has exposed divisions among Arizona Republicans over their support for abortion restrictions. And it has highlighted how abortion has become a political vulnerability for Republicans since the overturning of Roe v. Wade two years ago, even in traditionally conservative states.

Some Arizona Republicans who had previously voted to support abortion restrictions or give legal protection to fetuses abruptly shifted course after the ruling on Tuesday and called for a repeal or some other legislative fix.

On Wednesday, former President Donald J. Trump, who has claimed credit for appointing the U.S. Supreme Court justices who overturned the constitutional right to abortion, said that Arizona’s high court had gone too far, and that he believed “that will be straightened out.”

But the state’s ultraconservative Freedom Caucus praised the court’s ruling, saying it protected innocent lives, and it vowed to oppose efforts to undo it.

Clinics and patients scrambled to make sense of the legal and administrative confusion left by the 4-to-2 vote by Arizona’s high court, with little certainty about when the 160-year-old ban would go back into effect.

Phones have been ringing constantly at Camelback Family Planning in Phoenix, according to Dr. Gabrielle Goodrick, the clinic’s owner and medical director, with patients asking whether they can still obtain services and for how long.

“They’re just freaking out,” Dr. Goodrick said.

She said her clinic, one of seven free-standing abortion facilities in the state, had twice before been forced to temporarily stop providing abortions after the Supreme Court’s decision in Dobbs v Jackson Women’s Health Organization, which overturned Roe. The threat of having to stop again because of the 1864 ban, Dr. Goodrick said, would upend clinics and threaten patients’ health.

“We’re living in a dystopia,” she said. “I’m hoping the Legislature will do something. This is not what Arizonans want.”

While the number of abortions nationally has increased since the Dobbs decision, Arizona was one of the few states where it declined from 2020 to 2023, even though abortion remained legal. Doctors say that was in part because of uncertainty over the 1864 ban, which had been dormant as long as Roe was the law of the land.

(The same decline happened in Wisconsin, which also has a ban from 1849 still on the books. A judge ruled last year that the law did not make abortions illegal, but the State Supreme Court is considering an appeal of that ruling).

Emergency room doctors, anesthesiologists and obstetricians said they worried about being sued if they took part in an abortion even if it was endangering a woman’s health or life. Those fears were eased somewhat after hospitals and their lawyers came up with policies, said Dr. Julie Kwatra, an obstetrician-gynecologist with Honor Health in Scottsdale.

“This feels like a cataclysm,” Dr. Kwatra said. “The Dobbs decision was a shock, and even if people were not entirely comfortable with the 15 weeks there was a feeling that Arizona dodged a bullet,” she said.

“Now, no. We did not dodge the bullet,” she said.

According to WeCount, a measure by the Society of Family Planning, the number of abortions in Arizona dropped to 210 the month after Roe was overturned, down from 1,470 abortions the month before. While the monthly number began to climb again in subsequent months, data from Arizona’s health department showed a decline of nearly 18 percent from 2021 to 2022.

According to the Guttmacher Institute, the number of abortions in Arizona declined by 10 percent from 2020 to 2023. By contrast, New Mexico, where many abortion providers from banned states moved their practices after Roe was overturned, saw a 257 percent increase.

Because of an order in a separate lawsuit over the ban, the state cannot begin enforcing it until 45 days after the State Supreme Court enters its judgment. Planned Parenthood and other clinics said they would continue to provide abortions, within 15 weeks of pregnancy, “for a short period of time” until the ban is in effect.

The Abortion Access Dashboard, maintained by researchers at Middlebury College, says the average distance to an abortion provider in Arizona is now about 32 miles and 36 minutes. Under the ban, the database estimates that women seeking abortions would have to drive nearly four hours and 248 miles.

Arizona’s attorney general, Kris Mayes, a Democrat, has said that she will not allow prosecutions under the law. But Dr. Kwatra, the state’s legislative chair for the American College of Obstetricians and Gynecologists, says providers are telling her that they will not risk offering abortions.

“What happened after Dobbs was that there was a period where abortion was not provided, then very quickly it was being provided but people on the ground did not know that, so I had patients that were still going out of state because they didn’t ask, and they still thought it was illegal,” she said. “That chilling effect is still an issue. People leave the state, and that delays care.”

“Even if the providers don’t shut down, their staff might leave,” Dr. Kwatra said. “There still is a black cloud of illegality.”

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