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Inside the GOP reckoning over Arizona’s 1864 abortion ban

PHOENIX — A Republican state legislator proclaimed on the floor of the Arizona Senate two months ago that “abortion is the ending of an innocent human life.”

Another includes a declaration on his website that he will always “fight for the unborn.”

And a third championed a law to allow pregnant women to use the carpool lane, arguing that a “pre-born baby” should be treated “as the human they are.”

Now all three state lawmakers say they are likely to vote to repeal a Civil War-era law that would soon ban abortion across the state. A vote could happen as early as Wednesday.

Like many of their fellow conservatives around the country, the lawmakers had long expressed a seemingly unshakable moral view that abortion was an abomination that should be stopped. But then came the national uproar over a decision by the Arizona Supreme Court last week upholding an 1864 abortion ban that punishes providers with prison time — coupled with a sense that the backlash could hurt Donald Trump’s presidential campaign in a state he narrowly lost four years ago.

The shift by state Sen. Shawnna Bolick and Reps. Tim Dunn and Matt Gress — as well as Arizona U.S. Senate candidate Kari Lake — lays bare a larger crisis within the Republican party over how to handle the abortion issue ahead of November. The U.S. Supreme Court’s 2022 ruling to overturn Roe v. Wade passed the practical decision of whether to allow access to abortion to state lawmakers, and many Republicans are now caught between long-held, often religiously rooted views that have defined the GOP for generations and a more practical desire to win elections.

In recent days, Lake, who once described the 160-year-old measure as a “great law,” has been personally lobbying some Republicans to repeal the ban, highlighting the political stakes of the looming vote. According to one lawmaker who received such a call and spoke on the condition of anonymity to describe private conversations, Lake made it clear that she “understands [the pre-Roe ban] will be bad for her and for Trump.” They discussed how Arizona is essential for Trump to secure the presidency, the lawmaker said. Trump lost the state to President Biden in 2020 by only 10,457 votes.

The dilemma facing Republicans on abortion has grown even more acute since last Wednesday, when Trump said Arizona’s abortion ban goes too far and promised it would be “straightened out” by “the governor and everybody else.” Trump, the presumptive Republican presidential nominee who has bragged about his role in the overturning of Roe, made a similar promise about a pending six-week abortion ban in Florida, even as he has argued the abortion issue should be left to the states.

Two Republicans in the Arizona House of Representatives and two in the Senate would have to join all of both chambers’ Democrats to repeal the ban, which could take effect as early as June 8 without legislative action. If the legislature agrees to repeal the 1864 ban, the current law banning abortion after 15 weeks of pregnancy prevails, legislative staffers and lawmakers said. On the eve of the legislature taking up the issue, people on both sides said they could not predict the outcome.

As they weighed their votes, many Republicans in Arizona described agonizing over the decision — reckoning with core beliefs as they texted colleagues, talked to constituents, pastors and priests, and prayed for wisdom. One received what they described as “threats” from a leading state antiabortion advocate.

“This is the most difficult decision that I’ve made in the eight years that I’ve been there,” said Rep. David Cook (R), a longtime abortion foe who, as of Tuesday, said he had not decided how he would vote. “You’re faced with the personal convictions of protecting … an innocent life.”

Sen. Ken Bennett (R), who represents a red area and once presided over the chamber as president and also served as secretary of state, predicted that several Republicans would not “have a chance” of getting reelected if the pre-Roe ban is allowed to stand.

“I’m expecting Wednesday to be one of the hardest days the Arizona legislature has ever had,” he said.

The question of the 1864 law has deeply divided the caucus, with some staunch antiabortion advocates urging their colleagues to hold firm against repeal — and lobbing personal attacks at those who are considering voting for it.

“Anybody who would allow innocent people to be killed to preserve their political career to win an election does not deserve to win,” said Rep. Alex Kolodin (R), who sees the 1864 law as a victory for the party’s core ideological position as well as a major humanitarian triumph.

Several GOP lawmakers and operatives said Trump’s comments could ease the decision to vote for a repeal for some Republicans who were on the fence, granting them permission to go against their values for a better chance at securing victory in November.

“It gave them cover,” said one prominent Arizona Republican who supports the repeal and spoke on the condition of anonymity to candidly discuss internal party dynamics. Trump’s statements would have been even more helpful, the person added, if some antiabortion members were not “virtue signaling” about the pre-Roe ban and “trying to force everybody to be pilloried for representing their constituents.”

Some Republican resistance to the state Supreme Court ruling emerged almost immediately. Soon after the court made its decision on April 9, several GOP lawmakers issued statements condemning the move, including Gress, Bolick and Sen. T.J. Shope — who all hail from districts that could be competitive in November.

Bolick, who is married to an Arizona Supreme Court justice, urged fellow Republicans to “find common ground of common sense” and “repeal the territorial law.”

Gress made a similar argument on the House floor last Wednesday, after he moved to suspend the chamber’s rules to bring forward the motion to repeal the law — a maneuver that surprised and angered many of his Republican colleagues. When he was shut down by the GOP majority, the Democrats erupted into chants of “Shame, Shame, Shame!”

(Bolick did not respond to a request for comment. Gress declined to comment.)

Almost all of the GOP lawmakers who are now considering a repeal voted in the spring of 2022 — before Roe was overturned — for a law that banned abortions after 15 weeks of pregnancy and included an explicit endorsement of the 1864 ban, specifying that the new 15-week law would not preclude the near-total abortion ban from taking effect if the U.S. Supreme Court acted. The leaders of the Arizona House and Senate went even further, submitting an amicus brief in May 2023 to the state’s highest court arguing that the pre-Roe ban should be allowed to stand.

In an interview, Arizona Gov. Katie Hobbs (D) stressed that Republicans in the legislature “asked for this.”

“They own this. They voted for a bill that had this explicit language in it,” she said. “They had the ability to not vote for this law in the first place.”

Hobbs and her team have talked to key GOP lawmakers about the repeal effort, assuring them she would sign repeal legislation if it passes, according to people familiar with the discussions who spoke on the condition of anonymity to disclose private deliberations.

Some Republicans started to recognize the shifting political winds soon after Roe was overturned — especially after voters in conservative Kansas voted overwhelmingly to protect abortion rights in August 2022. In Arizona, Gress sent out mailers ahead of the midterms that year saying he opposed the pre-Roe ban, despite sponsoring several bills during his time in the legislature designed to recognize a fetus as a person.

Some Republicans maintain that a vote to repeal the 1864 law would not be at odds with their antiabortion beliefs because they are trying to be strategic about choosing a path forward that would prevent the most abortions. Democrats are trying to get an initiative on the November ballot that would enshrine abortion rights in the state constitution and allow the procedure to the point of fetal viability, or about 24 weeks. These Republicans argue that supporting the repeal could demonstrate they are attuned to voter sentiments while lending credibility to GOP opposition to the ballot measure.

“What’s going to save the most lives? That’s what Republicans are struggling with,” said Dunn, the GOP representative. “You do not want to vote for something that moves it from a zero ban to … 15 weeks. … But if we don’t remove it, you’re going to force this ballot measure that’s going to be almost guaranteed to win.”

The Democratic-led ballot initiative is a major concern for Arizona Republicans.

On Monday, the House GOP general counsel circulated a PowerPoint presentation outlining the party’s strategy to combat the abortion referendum likely to appear on the Arizona ballot in November, provided the measure is backed by the necessary number of signatures and clears all possible challenges from antiabortion advocates.

The presentation was sent to all House members — not just Republicans — and was promptly shared with reporters.

It outlined a plan to add another abortion referendum to the ballot that would allow the procedure only up until six weeks of pregnancy, before many people know they’re pregnant, or 15 weeks. The goal, according to the presentation, would be to “pull votes” from the Democrats’ referendum.

The presentation ended with a meme of comedian Seth Meyers, with the words, “Boom. Easy as That.”

Abortion rights advocates have triumphed around the country each of the seven times abortion has appeared on the ballot since Roe was overturned.

Although he wants the 160-year-old law repealed, Sen. Brian Fernandez, a Democrat from Yuma, is wary about the GOP’s next move. By joining forces with Republicans to try to eliminate that law, he warned his Democratic colleagues during an emotional meeting last week, they would usher in another big fight with the GOP on abortion.

Fernandez suspects Republicans would try to get their own initiative on the November ballot that is more restrictive than the Democratic-favored abortion access measure, as indicated in the PowerPoint presentation. Such a move could compete with the Democratic measure or confuse voters, said lawmakers and political consultants in the state.

“Now all the sudden, Matt Gress is the savior for women’s rights?” Fernandez asked, referring to the Republican who pushed last week for a vote to repeal.

“I don’t buy it. Maybe I’m just cynical, maybe I’m stupid, I don’t know, but I don’t buy that these guys are somehow going to be the savior for us,” he said.

This post appeared first on The Washington Post

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