Arizona Legislature repeals 1864 abortion ban after two GOP senators rebel

Arizona lawmakers on Wednesday voted to repeal a Civil War-era law that banned nearly all abortions, after a pair of Republican senators joined with all Democrats. 

The Republican-controlled Senate had enough votes to pass legislation repealing the 1864 law by a razor-thin margin, 16-14. All 14 Democrats were joined by two Republicans: state Sens. Shawnna Bolick and T.J. Shope.

The bill next heads to Gov. Katie Hobbs (D), who has promised to sign it.  

“This is a clear statement that the Legislature does not want the territorial ban to be enforceable,” said state Sen. Priya Sundareshan (D), who voted yes to repeal.

The 1864 ban has divided Republicans in the state and nationally. Some Republicans, including former President Trump and Senate hopeful Kari Lake, wanted to see the law repealed, saying it goes too far and is inappropriate for the modern era.

Lake has flipped back and forth on how she speaks about the 1864 measure. In 2022, when she was running for governor of Arizona, she called it a “great law.” 

Still, some Republicans recognized the backlash against the 1864 law could upend conservative majorities in the state and hurt Trump’s campaign in the crucial swing state. They also want to try to curtail the momentum behind a likely ballot measure that would constitutionally legalize abortion up to fetal viability, with medical exceptions for women who are further along.

Abortion-rights advocates have been gathering signatures to place a referendum on the ballot that would protect access until the point of fetal viability, or roughly 24 weeks of pregnancy.

Bolick, a staunch anti-abortion advocate, gave a long personal speech about her own difficult pregnancies, including one miscarriage that ended with an abortion procedure in her first trimester because the fetus was not viable.

“Many women don’t have textbook pregnancies,” she said.

Still, Bolick also railed against Democrats and Planned Parenthood and explained her vote was aimed at reinstating the 15-week ban. She said the 1864 law was too draconian for the public, who if given a choice would vote for the more permissive ballot measure.

“We should be pushing for the maximum protection for unborn children that can be sustained,” she said. “I side with saving more babies’ lives.”

But Bolick and Shope were still slammed by some of their colleagues, who called them out for betraying the Republican party.

Sen. Anthony Kern (R) said it was “insanity” that Republicans like Bolick and Shope claim to be pro-life but voted to repeal the ban.

Kern, who was among the Republicans recently indicted last week in the scheme to falsely certify to Congress that Trump had won the 2020 presidential election in Arizona, predicted that the vote would pave the way for acceptance of pedophilia.

Sen. Jake Hoffman (R), who was also indicted as a “fake elector,” praised the 1864 law as one of the ” best, strongest, pro-life measures in the country.”

Hoffman said it was “disgusting” that some Republicans would cross party lines over abortion.

Arizona became the latest battleground state to grapple with abortion access when the state Supreme Court upheld the ban on nearly all abortions in the state, except in instances to save the life of the mother. The law also imposes jail time for physicians who perform abortions. 

Wednesday’s vote comes one week after the GOP-controlled House narrowly passed its version to repeal the law, with three Republicans joining Democrats.

Even if Hobbs signs the repeal this week, it can’t go into effect until 90 days after the legislative session ends, and there is currently no adjournment date.  

State Attorney General Kris Mayes (D) this week asked the state Supreme Court to pause its ruling, which will now take effect June 27 at the earliest.  

Once the repeal is official, the state would revert to the 15-week ban that was invalidated by the court. Like the 1864 ban, the 15-week law does not make any exceptions for rape or incest.

Republicans are likely to attempt to introduce their own referendum to limit abortion at 15 weeks, or potentially six weeks. If both chambers of the Legislature can pass the same language, it would automatically get on the ballot in November.

Updated at 5:53 p.m.