Arizona Legislature adjourns just in time to prevent repealed 1864 abortion ban from taking effect

WASHINGTON – Arizonans nearly found themselves back in the 1800s.

A Civil War-era abortion ban repealed in May would have become enforceable on Sept. 26 – temporarily – if the Legislature didn’t adjourn in time.

New laws take effect 90 days after the legislative session. Through that quirk, unless lawmakers adjourned by June 28 the ban they had just repealed would be the law of the land, if only for a few days.

As a budget deadlock persisted, the specter grew that lawmakers would miss the deadline. Then, in a weekend push, they completed their work on Saturday night.

Even a brief period when abortion at any stage became a crime in Arizona would have been “devastating,” said Athena Salman, director of Arizona Campaigns with Reproductive Freedom For All.

“Folks with resources and the time to plan can travel out of state for the health care they need,” said Salman, a former member of the Legislature. “But for a lot of people, this will just put them in life-threatening situations that otherwise would not have been the case.”

The potential gap – averted by the Legislature’s adjournment, stemmed from accidents of timing.

In early April, the conservative-leaning Arizona Supreme Court ruled that a near-total ban on abortion adopted in 1864 – 48 years before Arizona joined the union – was once again in force.

That law provided two to five years in prison for anyone who receives an abortion or helps to provide one.

The U.S. Supreme Court’s 1973 Roe v. Wade ruling struck down such bans. In June 2022, the court overturned that landmark in Dobbs v. Jackson.

Three months earlier, the Legislature had adopted a ban on abortion after the 15th week of pregnancy. The new law left the Civil War-era law untouched.

The Arizona Supreme Court ruling reviving the 1864 ban set off protests across the state. Groups that support abortion rights have gathered signatures to put a state constitutional amendment on the November ballot ensuring abortion rights.

Amid a national uproar, the GOP-controlled Legislature repealed the 1864 ban two weeks after the state court’s ruling. Three Republicans in the House and two in the Senate joined with Democrats supporting repeal.

Gov. Katie Hobbs, a Democrat, signed the repeal on May 2.

Abortion law status remains unclear, even as lawmakers near repeal of ban

“We should recommit to protecting women’s bodily autonomy, their ability to make their own health care decisions, and the ability to control their lives,” she said.

Arizona has nine clinics that provide abortions, six in Maricopa County, two in Pima County and one in Coconino County, according to AbortionFinder and Planned Parenthood.

Coconino County Attorney Bill Ring, a Democrat, ruled out the possibility of prosecution in April, saying, “Prosecution under territorial law, with its 1864 history and traditions, asks too much of the modern-day prosecutor 160 years later.”

Cronkite News asked prosecutors in the other counties whether they would press charges against anyone if the 1864 law became active in the fall.

“I will follow the law,” Maricopa County Attorney Rachel Mitchell said in a statement last week, before the issue became moot.

Mitchell, a Republican who is running for reelection, voiced public assurance in April that women would not be prosecuted for obtaining an abortion. An aide offered further clarification last week: “Doctors should not fear prosecution.”

In Pima County, the Tucson City Council directed police in 2022 – ahead of the Dobbs ruling – not to arrest anyone for violation of any abortion ban that might take effect.

“I’m not going to be using precious resources to prosecute,” Pima County Attorney Laura Conover, a Democrat who is also up for reelection, said by phone last week. “It deeply matters who your leaders are at the local level. Women should have access to their rights statewide.”

“Pima County is fortunate to be in the same place with a chief and a sheriff who do not intend to use their precious resources investigating such complaints,” she said.