Gov. Katie Hobbs won't call a special legislative session to repeal an 1864 near-total abortion ban because an appeals court ruled it can't be enforced broadly. Photo by Ross D. Franklin | Associated Press/Pool
Gov. Katie Hobbs won’t fulfill her campaign promise to call a special session on her first day in office to repeal the state’s Civil War-era abortion near total ban, saying that a recent court ruling made that effort moot.
Last week, the Arizona Court of Appeals ruled that the new 15-week law signed by former Gov. Doug Ducey in May supersedes the 1864 ban that former Attorney General Mark Brnovich sought permission to enforce after the constitutional right to abortion in Roe v. Wade was nullified. Before that ruling, doctors and women across the state were in legal limbo as Ducey and Brnovich tangled over which law should reign supreme in Arizona, and attorneys for Planned Parenthood Arizona argued that 50 years of laws regulating the procedure meant it should remain intact to some degree.
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The 1864 near-total ban prohibits abortion in all cases except to save the life of the mother, while the 2022 law outlaws the procedure past 15 weeks of pregnancy, with a similar exception. Hobbs, on the campaign trail at the time, vowed to convene a special session to strike down the ban, but spokeswoman Josselyn Berry said it’s not necessary anymore.
“The Arizona Appeals Court struck down the territorial ban,” she said. “There’s no longer a territorial ban for us to have a special session to repeal.”
While the three-judge panel upheld the 15-week law, they didn’t strike the 1864 ban from the books entirely. An appeal to the conservative Arizona Supreme Court is still a possibility, but it would be significantly weakened by newly elected Attorney General Kris Mayes’ refusal to take up Brnovich’s mantle. Mayes has criticized Brnovich’s position and made clear she intends to protect reproductive rights in the state.
“There probably is an appeal to the Supreme Court, but Kris Mayes will not defend the state’s (previous) position which has been that the 1864 ban should be enforced,” said Amy Fitch-Heacock, co-founder of Arizonans for Reproductive Freedom.
Dr. Eric Hazelrigg, medical director of Choices Pregnancy Center, an anti-abortion pregnancy services organization, joined Brnovich in his suit to reinstate the 1864 near-total ban. Hazelrigg is represented by Alliance Defending Freedom, a conservative legal group that advocates for the outlawing of abortion procedures which could potentially appeal the appellate court’s decision.
Kevin Theriot, senior counsel for Alliance Defending Freedom, said the group is still deciding its next move.
“Arizona has a history of respecting the lives of the unborn and ensuring women facing unplanned pregnancies have real support,” he said in an emailed statement. “We hope to see this principle upheld to the fullest extent possible and are considering options for next steps in the case.”
For now, pro-abortion leadership in the state, coupled with the appellate court’s decision, means the 1864 ban is held somewhat at bay. That’s heartening, Fitch-Heacock said, although she allowed that she would have liked to see it eliminated completely. Legislative action would have been one way to attain that, but with a Republican-majority in the statehouse, it likely would have been a non-starter.
Alternatively, the public can take action via the citizen initiative process. Arizonans for Reproductive Freedom is spearheading that approach, putting together a ballot proposal to protect abortion access for Arizonans to vote on in the 2024 election.
“Although we would like to get the 1864 law off the books, we now have two appellate rulings which really limit its power,” Fitch-Heacock said. “So, we’ll just be looking forward to a ballot initiative which will ultimately repeal that and also the 15 week ban.”
Before taking on the case, the same three-judge appellate panel approved a request from Planned Parenthood Arizona to pause the 1864 ban while litigation continued, ruling that it’s the responsibility of the courts to harmonize decades of laws in conflict with the ban.
Fitch-Heacock expects the 2024 ballot initiative to be filed by the end of the month, ahead of efforts to collect enough signatures to get it on the ballot.
Until then, women in the state can access abortion services up to 15 weeks. Past that point, only women facing imminent risks to their lives will be able to obtain the procedure. It includes no exceptions for victims of rape or incest.
Hobbs opposes the 15-week ban, as well, but Berry said shifting the special session to repeal that law was not considered as an option. Just as with the 1864 ban, it would have been unlikely to gain any traction with the conservative majority. Instead, Hobbs will look at expanding and restoring abortion access in other ways, although Berry couldn’t provide strategies beyond that.
“It’s on our list and it’s a priority,” she said.
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