The chief medical officer for Planned Parenthood ÃÛèÖÖ±²¥ said Thursday that abortions could soon become unavailable — at least for some period of time — even if state lawmakers repeal the 1864 law all but banning them.
Jill Gibson acknowledged that the ÃÛèÖÖ±²¥ Senate is set to vote Wednesday to scrap the law that makes all abortions illegal except to save the life of the mother. That follows a House vote this week to do the same thing. Democratic Gov. Katie Hobbs said she will sign the repeal.
But the governor acknowledged Thursday she has no power to keep doctors who perform abortions from being arrested between the time the ÃÛèÖÖ±²¥ Supreme Court declares the old law is once again enforceable — which could occur within weeks — until the expected repeal takes effect, a process that could take months.
“Unfortunately, it’s not possible to get this repeal enacted right away,†Hobbs said.
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The earliest the old law could be wiped from the books is 91 days after the legislative session ends, which could mean the repeal won’t take effect until sometime in August, if not later.
That timing issue is on Gibson’s mind, as well.
“If the total abortion ban is repealed, there could — without further legal action — still be a ‘blackout’ period where abortion is not legal in our state,†given that 91-day delay, she said.
Gibson said Planned Parenthood is preparing for what it will have to do to help its patients access care.
“We will be working with our partners in other states through our patient navigator program until we can resume providing abortion care,†she said.
That program can connect patients with organizations that provide financial resources should they need to go elsewhere. That includes securing food, lodging and transportation for out-of-state travel and helping to secure child care, including for those who have to leave ÃÛèÖÖ±²¥.
Gibson pointed out that Planned Parenthood did this in late 2022. That’s when a trial judge initially ruled that the territorial-era law, dating to 1864 and calling for up to five-year prison terms for abortion providers, was enforceable despite a more recent state law restricting abortions to the first 15 weeks of pregnancy.
A Court of Appeals ruling overturned the trial judge. But the state Supreme Court has now upheld the 1864 law.
Hobbs said Thursday it should not have come to the point where abortions would be unavailable until the legislation repealing the old law finally becomes effective.
She pointed out that she was calling for the old law to be repealed even before she became governor in 2023.
That was after the 2022 U.S. Supreme Court ruling in Dobbs v. Jackson, which overturned the 1973 Roe v. Wade ruling that said women had a constitutional right to terminate a pregnancy. The 2022 decision returned decisions about abortion laws to each state, including ÃÛèÖÖ±²¥, where lawmakers had never repealed the 1864 ban even after the Roe ruling.
“This result that we’re seeing right now is exactly what we said would happen,†Hobbs said. “They should have repealed it a long time ago so we wouldn’t be in this position.â€
There have been bills to do just that for years. But until earlier this month there was no pressure on lawmakers to repeal the old law. That changed when the ÃÛèÖÖ±²¥ Supreme Court ruled the 1864 law trumps the more recent 15-week limit.
“It is really, really, really frustrating,†Hobbs said. “And there’s a lot of fear from providers and patients about what care they can provide and get.â€
That includes doctors’ fears of arrest, she said.
Hobbs has been relying on her 2023 executive order giving Democratic Attorney General Kris Mayes the exclusive authority to prosecute any violations of any abortion law, authority that normally is the purview of each of the 15 individual county attorneys. Mayes has publicly stated she will not bring any such charges against a medical provider.
But the governor’s legal power to suspend the authority of county attorneys —which some have questioned — definitely does not extend to law enforcement.
That became an issue last week after Republican U.S. Senate candidate Kari Lake called on county sheriffs to start enforcing the old law, the Copper Courier newspaper reported.
“We can have that law, but it’s not going to be enforced with the people we have in office,†Lake said at a Mohave County Republican Party event.
“The only people who can enforce that law are our sheriffs,†the paper quoted Lake saying. “And we need to start asking the sheriffs if they’re willing to enforce that law.â€
There was no immediate response from Lake to questions about her statement.
Hobbs, asked Thursday at a news conference how she thinks she can keep doctors from being arrested, responded: “Your question exactly illustrates the chaos and confusion that exists because of this ban, and the reason that myself and others have been calling for the repeal of this ban since Dobbs in 2022.â€
Repeal now depends on two Senate Republicans.
T.J. Shope of Coolidge and Shawnna Bolick of Phoenix voted last week with Democrats to suspend the rules to allow the Senate to take up legislation identical to what the House just approved. But their votes are still needed this coming Wednesday for final action.
Shope said he remains ready to cast that final vote. He told Capitol Media Services that the 15-week limit, approved by the Legislature in 2022, is “where I think it should be.â€
He said he sees the 15-week law as a “reasonable compromise†between the territorial-era statute and a more comprehensive initiative. Backers of that initiative hope to ask voters in November to permit abortions in all circumstances through fetal viability, and beyond that in cases of the life or the physical or mental health of the mother.
There was no immediate response from Bolick.
There is another option to delay enforcement of the territorial-era law: Mayes could file a new lawsuit challenging the old law and ask that enforcement be postponed until that it resolved.
The case before the ÃÛèÖÖ±²¥ Supreme Court focused on the narrow issue of whether the 15-week law supersedes the old law. The state high court has never considered whether restricting a woman’s ability to terminate a pregnancy runs afoul of a privacy provision in the ÃÛèÖÖ±²¥ Constitution.
Mayes has advanced that privacy theory, and she is still considering all her options, an aide said Thursday.
How quickly the old law will return — even if temporarily — is up in the air.
The original Supreme Court ruling earlier this month provided a 14-day delay before the justices would issue a formal “mandate†of their order that the older law prevails. On top of that, there’s an agreement in a parallel challenge to the old law to delay actual enforcement for 45 days after that mandate.
That would have meant June 8.
But Mayes bought at least two extra weeks by filing a formal motion Tuesday asking the state Supreme Court to reconsider its ruling. And the court won’t issue the mandate that starts the 45-day clock running until it rules on that motion.
Still, Hobbs acknowledged, a gap still will exist. And she has no way to keep that from happening once there is a final order.
“I’m hopeful that the courts would see this as a compelling reason to keep the stay in place,†the governor said.
“But there’s no guarantee,†she said. In fact, neither Planned Parenthood ÃÛèÖÖ±²¥ nor Mayes’ office has sought an additional stay.
With that gap looming, Hobbs and Mayes unveiled Thursday, at , providing answers to questions about access to reproductive health care, including abortions. It in turn provides links to another site where women can learn about abortion services, including where to find financial help to travel out of state.
Howard Fischer is a veteran journalist who has been reporting since 1970 and covering state politics and the Legislature since 1982. Follow him on X, formerly known as Twitter, and Threads at @azcapmedia or email azcapmedia@gmail.com.