Arizona abortion ban repeal signed by Gov. Katie Hobbs, but 1864 law will linger for months. What's next?
Arizona Gov. Katie Hobbs on Thursday signed into law a repeal of the state's 160-year-old abortion ban, rescinding one of the nation's most restrictive abortion laws after weeks of hard-fought political negotiation at the state Capitol.
“Today we are doing what 23 governors and 55 legislatures refused to do, and I am so proud to be the ones that got this job done,” Hobbs said, reaffirming in brief remarks that she would “do everything in my power to protect our reproductive freedoms, because I trust women to make the decisions that are best for them.”
About 30 Democratic lawmakers and abortion rights advocates from Planned Parenthood and other groups stood beside the governor as she signed the bill at her office at the Capitol complex.
But neither the governor's signature, nor the Arizona Legislature's momentous decision Wednesday to repeal the ban, will bring stability right away to a policy area that has been in flux — and a subject of intense political debate — for nearly two years. The Arizona Supreme Court renewed that uncertainty with its high-profile decision in April upholding the Civil War-era abortion policy.
The governor's signature does not mean the ban goes away immediately. That could be months away, but once it is officially repealed, a 2022 law that prohibits most abortions after 15 weeks of pregnancy will become effective.
The law allows abortions after 15 weeks if the pregnancy creates life-threatening conditions or "serious risk of substantial and irreversible impairment of a major bodily function," but does not include exceptions for rape or incest.
Just moments after the repeal vote became official, Planned Parenthood Arizona announced it had asked the Arizona Supreme Court to delay enforcement of the 1864 ban. A day earlier, Attorney General Kris Mayes offered another legal avenue to delay enforcement.
Yet with those efforts unsettled, the state could return to the confusion of 2022 after the U.S. Supreme Court overturned Roe v. Wade and no one could say with certainty which abortion law governed Arizonans.
Here are some of the issues at play.
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Planned Parenthood asks court for delay on 1864 abortion ban
Following the successful state Senate vote repealing the 1864 law, Planned Parenthood Arizona filed a motion with the state Supreme Court asking it to delay issuing its mandate until after the repeal takes effect.
Without more action, the group claims, “abortion care could stop for several months, and Arizonans will live under a draconian total abortion ban despite efforts to stop its enforcement.”
But if the court grants the motion, it could mean the ban is never enforced.
If the court agrees with Planned Parenthood, its final mandate wouldn’t come until 90 days after the date when the Legislature ends its session for the year. Add in a 45-day delay of enforcement that was agreed to in a separate case, and the likely enforcement date moves past the November election, when voters will likely get to decide on a ballot measure writing abortion rights into the state constitution.
In theory, the 1864 law wouldn’t go into effect before voters get that chance to pass a new, permissive abortion law that would supplant the law the Legislature voted this week to repeal, as well as the 2022 law banning abortions after 15 weeks of pregnancy.
“We hope the Court stays true to its word and respects this long-overdue legislative action, by quickly granting our motion to end the uncertainty over the future of abortion in Arizona,” Planned Parenthood Arizona said in a statement.
Kris Mayes sees what might stick at Supreme Court
Mayes has tried several efforts aiming to delay when the court's April 9 decision becomes final. A motion to reconsider the ruling was rejected, which Mayes' office said extended the time clock the ban could be enforced to late June. That's because of the order in a separate case that said enforcement would not occur until at least 45 days after the court's ruling becomes final.
But on Tuesday, Mayes asked the justices to again delay their final mandate for 90 days so she can consider taking the case to the U.S. Supreme Court. She said the court relied on a state law that had been found to be unconstitutionally vague in a separate federal case, a rift that could give her a path to the nation's top court.
The federal case deals with an Arizona law that gave fetuses human rights, a law that is currently barred by court order from being enforced.
"My office needs time to thoroughly evaluate these issues before deciding whether or not to ask the United States Supreme Court to review our state court’s decision," Mayes said in a statement.
On Thursday, the Arizona Supreme Court set a timeframe for both Mayes' and Planned Parenthood's requests to be heard. It directed groups that defended the ban to respond by May 7.
Effective dates of Arizona abortion ban legislation
Laws passed by the state Legislature and signed by the governor typically take effect 90 days after the end of the year’s legislative session, also known as sine die. It’s not yet known when sine die will be this year.
The Legislature normally ends its work in May or June by completing its most important, and only constitutionally mandated task: Enacting a state budget with the governor. It’s possible Hobbs and legislators will finish before the state deadline for the budget, June 30.
It’s also possible lawmakers could finish the state budget before June 30 and not declare sine die until later. Last year, sine die was on July 31, making the effective date of bills Oct. 30.
If the Legislature wraps up its work for the year by the end of May, as Hobbs projected this week, the abortion ban repeal would take place in late August.
Hobbs: Special session on abortion 'exercise in futility'
On the campaign trail in 2022, Hobbs pledged she would call Republicans into a special session on Day 1 to repeal the ban. She didn't do that, and her staff said at the time the repeal wasn't necessary because courts had ruled the 15-week law prevailed.
Hobbs told The Arizona Republic on Wednesday she didn't regret the decision not to call the special session last year, noting it would have been an "exercise in futility" given the GOP majorities in the Legislature. They only repealed the ban after last month's Arizona Supreme Court decision and ensuing political pressure, she said.
Her administration has maintained that a special session this year wasn't an option, citing uncertainty that Republicans would vote with Democrats to guarantee the repeal would pass. That played out on the House floor, which saw multiple heated attempts at a repeal before the vote stuck.
A special session would mean the repeal could be effective sooner, but Hobbs said on Wednesday that difference was minimal because she expected the Legislature to end its work later this month.
“The difference in those days at this point is minimal compared to the logistics involved," the governor said. "It just, it wasn’t necessary, it wasn’t going to solve the issue. And the chaos we saw in the House wouldn’t have changed with a special session.”
Enforcement before repeal of Arizona abortion ban?
If efforts to delay enforcement of the territorial ban fail, Mayes said the 1864 law would be the law of the land from June 27 until the repeal goes into effect. Would that mean clinics would shut down and abortion providers would be indicted? Those questions can't be answered yet.
Hobbs issued an executive order last year giving power for all abortion prosecutions to Mayes, who has vowed to never prosecute someone over an abortion. County attorneys, including Maricopa County Attorney Rachel Mitchell, have criticized the order but haven't yet challenged it legally.
Abortion clinics are currently in only three counties: Coconino, Pima and Maricopa. Only one of those, Maricopa County, has a Republican county attorney.
Mitchell told CNN last month her office hasn't received a request from a law enforcement agency to prosecute an abortion provider since Roe v. Wade was overturned in 2022. But Mitchell has also indicated in public statements she would look into such a referral for possible prosecution if she received one.
Even without indictments, abortion providers suggest they could pause services temporarily if the ban is in effect.
Dr. Gabrielle Goodrick, a family physician and owner of Camelback Family Planning in Phoenix, told The Arizona Republic last month providers don't intend to flout the law when it goes into effect.
"If you are on trial for a felony for doing an illegal abortion, you are going to have some problems keeping your medical license," she said.
Alliance Defending Freedom, the conservative legal group defending the 1864 law, would like to see clinics close during the potential enforcement period.
"Arizona's law protecting life from the moment of conception should be enforced consistent with relevant laws and orders," said Jake Warner, senior counsel with the group. "Life is our most fundamental human right, and while we're disappointed in the repeal, we're grateful it doesn't go into effect until 90 days after the current legislative session ends, saving so many lives in the process."
Reach reporter Stacey Barchenger at [email protected] or 480-416-5669. Reach the reporter at [email protected] or 480-276-3237. Follow him on X @raystern.
This article originally appeared on Arizona Republic: Arizona abortion ban: Gov. Katie Hobbs signs 1864 law repeal