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It's no accident that Arizona's 1864 abortion law has been on the books for so long


The political debate over abortion came to center on Arizona this week, when the state Supreme Court ruled two days ago that an old law banning nearly all abortions can be enforced again. That law was written in 1864, before Arizona was even a state. Elsewhere in this program, we heard from Arizona Governor Katie Hobbs, a Democrat who opposes this law and the decision. To tell us more about the political debate and the history here, reporter Wayne Schutsky joins us from member station KJZZ in Phoenix. Hi there.


SHAPIRO: Catch us up on the efforts to keep abortion legal in the two days since this court ruling came down.

SCHUTSKY: So lawmakers are regrouping today after a few failed attempts yesterday at the legislature. They had attempted to force a vote on a bill to repeal the law, but Republicans largely blocked that. So for now, we're left with two conflicting abortion bans on the books - a 15-week ban passed a few years ago and that near-total ban you referenced that predates statehood.

The way we got here is basically, after the Dobbs decision overturning Roe v. Wade, we saw a court challenge trying to determine which law is the law. And the state Supreme Court, all of whom were appointed by Republican governors in the past, said the 1864 ban can still be enforced. It's not in effect yet, but - and it could be a few weeks before that happens. But the attorney general, who's a Democrat, says she won't enforce it. And Governor Hobbs, who you spoke to earlier, backed her up on that, saying the attorney general has the power to make that decision. So all of this has left a lot of uncertainty for providers and Arizonans who are seeking access to these procedures right now.

SHAPIRO: How did a Civil War-era law like this stay on the books in the first place? What's the history there?

SCHUTSKY: So as you mentioned, the first territorial legislature in Arizona passed it way back in 1864. And the law basically says that no one can help a pregnant woman take any medicine or undergo any procedure to induce a miscarriage, except to save her life, and doctors under this law face two to five years in prison. And the law's been adopted - readopted several times in Arizona, once as far back as 1901. But more importantly, back in 2022, that - when they passed that 15-week ban I mentioned, they included a clause that specifically says this new ban does not overrule the old law. And Republicans who passed the 15-week ban said they did that on purpose in order to preserve the old law in the event the Supreme Court overturned Roe v. Wade, which they did a few months later.

SHAPIRO: And so are the lawmakers who voted yes on that 2022 law upholding the 1864 law - are they celebrating now?

SCHUTSKY: Yes and no. Some of them are. Some of them have said this was the intent of the law. But the court ruling did seem to take other lawmakers by surprise. Yesterday, we saw those failed efforts I mentioned, and that included a few Republicans voicing support for the repeal, including a few that had voted in favor of that 2022 ban. But Democrats are saying those Republicans - who are all running in competitive districts, by the way - are changing the stance because the ban is politically unpopular. And they say - but the Democrats say they're going to continue efforts next week to try and repeal this law.

SHAPIRO: There's also this attempt to put a referendum on the ballot in November that would protect abortion rights. Where does that stand?

SCHUTSKY: So that looks like it's going to make it onto the ballot in November. You know, whether they appeal - or whether they repeal this old law or not, that ballot measure you mentioned would supersede both abortion bans if voters approve it. So backers of the ballot measure say they've gathered 500,000 signatures already, and that would put it on the ballot in November and - 'cause they only need about 400,000 to qualify. There are similar measures in about 10 other states, including Florida, and these measures could really be a force driving voter turnout this year and affect other races up and down the ballot, from the U.S. Senate to local legislative elections.

SHAPIRO: Wayne Schutsky of member station KJZZ in Phoenix, Ariz. - an important swing state that just got a lot more interesting this week, thanks.

SCHUTSKY: Thank you.

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Wayne Schutsky
[Copyright 2024 KJZZ]