'The damage is done': Ruben Gallego says repealing Arizona's near-total abortion ban now would be too little, too late

PHOENIX — Democratic Rep. Ruben Gallego argued this week that a potential repeal of Arizona’s 1864 abortion law is not a viable long-term solution to secure abortion rights for the women of Arizona.

“The damage is done,” Gallego told NBC News of a possible repeal of the 1864 ban, which the state’s Supreme Court ruled last week was enforceable, effectively banning the procedure statewide.

“Any initiative they pass right now wouldn’t even take effect for quite a while,” he added.

Gallego, who is running for Senate this year, also pointed out that a repeal of the 1864 near-total ban, which makes exceptions for medical emergencies but not for rape or incest, could be reversed by future state legislatures.

“To make matters worse, it could just get overturned later by another state House or state Senate,” Gallego said.

“The only protection we really, really have is to codify this and put this on the ballot and enshrine Roe and protect abortion rights,” he said.

Gallego argued a repeal through the state is just the first step in rectifying what he sees as injustice. “They just need to put the bill on the floor, overturn this and codify Roe, which you can do right now at the state level,” he said of what Republicans in the Legislature should do next in the wake of the 1864 ban.

Gallego made the comments Friday, just hours after rallying with Vice President Kamala Harris on the issue of securing abortion rights.

Under Arizona’s constitution, a new law wouldn’t take effect until 90 days after the Legislature adjourns.

A law could take effect immediately upon Gov. Katie Hobbs’ signature if it were deemed emergency legislation, but with both chambers of the Arizona Legislature controlled by Republicans, that is unlikely — meaning a ballot initiative could be a more pragmatic pathway for supporters of abortion rights.

Arizona for Abortion Access, a coalition of reproductive rights organizations including the ACLU of Arizona and Planned Parenthood Advocates of Arizona, is working to put a referendum on the state’s ballot in November to enshrine abortion rights in the state’s constitution.

The constitutional amendment that the coalition is putting forward would create a “fundamental right” to receive abortion care up until fetal viability, or about the 24th week of pregnancy, with exceptions after that point if a health care professional decides it’s needed to “protect the life or physical or mental health of the pregnant individual.”

The ballot initiative campaign announced it gathered more than half a million signatures at the beginning of the month, which is over 120,000 more than it needs to make it onto November’s ballot. But the signatures will be subject to scrutiny from opponents of abortion rights, leading organizers at Arizona for Abortion Access to aim for double the 383,923 valid signatures needed.

Gallego said his campaign has been pitching in with the signature collection.

“I have volunteers that are going door to door collecting signatures,” said the congressman.

Arizona Sen. Mark Kelly, a Democrat, called for repealing the state’s abortion ban in remarks to Phoenix volunteers for the Biden-Harris campaign on Saturday — even as he agreed with Gallego that a repeal through the Legislature is “not enough” and signaled support for federal legislation.

“We need to codify here in the state of Arizona the right for women to make this decision themselves, and then ultimately we need to do it federally,” Kelly said.

Despite the push from Democrats for alternatives like a ballot initiative or a federal law, Republicans in the Arizona Legislature could still be compelled to act at the state level amid pressure to reverse the ban.

“The Governor and the Arizona Legislature must use HEART, COMMON SENSE, and ACT IMMEDIATELY, to remedy what has happened,” wrote former President Donald Trump on his social media platform Truth Social on Friday.

“Arizona Legislature, please act as fast as possible!” the former president added.

Gallego’s opponent for the Senate, Trump-backed Republican Kari Lake, has been calling Republican legislators and pushing them to repeal the ban.

Republican state Rep. Matt Gress, one of the few Republican legislators to oppose the 1864 ban publicly, told NBC News’ Kristen Welker he believes it can be repealed in the coming days.

“I feel very confident that when we convene next Wednesday, we will vote on the measure and it will prevail in the House. And it will be sent to the Senate, and the Senate will take up the measure, and it will prevail in the Senate, and most likely that bill will be on Gov. Hobbs’ desk by the end of the day,” Gress said on “Meet the Press NOW” on Thursday.

But Gress’ timeline may conflict with the one set forth by Republican Speaker Ben Toma, who said in a statement Wednesday, “We as an elected body are going to take the time needed to listen to our constituents and carefully consider appropriate actions, rather than rush legislation on a topic of this magnitude.”

Gress introduced a motion to repeal the law Wednesday before appearing to vote for shutting down debate on that repeal just moments later, a vote he later admitted to The Arizona Republic.

On Wednesday, Arizona Republican state legislators blocked the push to repeal the 160-year-old abortion ban. The Arizona House is scheduled to convene again Wednesday.