Republicans got the Arizona abortion ban they wanted. Why are some now scrambling to undo it?

From state Senate President Warren Petersen's vantage point, the Arizona Supreme Court's ruling this week that abortions will soon be illegal in the state won't affect upcoming elections.

He was one of 26 current Republican lawmakers who voted in 2022 to keep the pre-statehood ban on the books, and still supports it. He's also all but immune from challenges in the Republican-heavy Legislative District 14, which mostly covers his hometown of Gilbert.

"The top issues right now are inflation, economy, and border," he said. "I think those will continue to be the top issues. Is abortion important to some people, and especially Democrats? Yes, it is. But I think we are leading on the most important issues."

By contrast, some of his GOP colleagues in the Legislature appear concerned the ruling could be exactly what Democrats need this year to win control of the state Legislature for the first time in decades. Republicans currently hold onto their narrow majority by one seat in each legislative chamber.

"Abortion overnight has become a top issue," said state Rep. Matt Gress, a first-term Republican from Phoenix's competitive Legislative District 4. "Republican candidates are going to have to contend with this. We cannot ignore the topic of abortion any longer. We do that at our own peril, because voters want to know where we stand on this."

With control up for grabs, swing-district Republicans find few friends

Trying to contend with it won't be easy for swing-district Republicans, who cut increasingly isolated figures in Arizona's Legislature. That was illustrated as Gress on Wednesday sought to bring a Democrat-sponsored repeal of the 1864 law to the House floor.

When Republican leaders quashed the motion, Democrats began a loud protest, yelling "Shame! Shame!" and "Save women's lives!" Led by Reps. Oscar de los Santos and Analise Ortiz, Democrats trained their ire on Gress, charging that his actions were "performative" and insincere, given his sponsorship last year of bills that they said promoted personhood for fetuses.

But on Gress' side of the aisle, some of his GOP colleagues roasted him for his failed motion. Republican Rep. Alexander Kolodin of Scottsdale accused him of leading the raucous display.

"In breaking the rules he voted for, (Gress) put his Republican comrades in swing districts in the line of fire for the sake of his own political ambitions, betrayed the pro-life movement, and denied the body the opportunity for the deliberation and discussion due this sensitive topic," Kolodin said.

Yet as Kolodin hinted, some GOP lawmakers are open to "discussion" about the 1864 ban.

Some don't necessarily want to see abortion ended in Arizona, particularly if it means a majority of Republicans won't get reelected this year. Former President Donald Trump criticized the court's ruling, saying Arizona's Democratic governor "and everybody else are going to bring it back into reason and that’ll be taken care of, I think, very quickly.”

Also at play is a potential ballot measure by abortion rights activists that already has gained more than 500,000 voter signatures, seemingly enough to make the 2024 ballot. Political observers say the measure could drive more Democrats to vote, erasing Republican margins for victory. In the wake of the decision, Democratic Attorney General Kris Mayes predicted the ruling "supercharges the ballot initiative and it supercharges the elections of all pro-choice candidates.”

Even Petersen, who's staunchly anti-abortion, acknowledged "most" Arizonans probably don't support the territorial-era law.

He doesn't support a possible repeal of the 1864 law and said he wouldn't be involved if a few Republicans joined Democrats in motioning to waive rules and bring such a repeal to the Senate floor. But he is open to talk this legislative session of a potential ballot referral by Republicans that would compete with the planned pro-abortion rights ballot measure.

"I think there have been some arguments made about the law that are fair arguments and concerns," Petersen said. "It's fair to criticize some of the construction. Some people are concerned about how you enforce it, the way it's written."

He added that he supports exceptions in rape and incest cases. Neither the law he voted for in 2022 nor the 1864 law contains such provisions.

Republican-dominated Legislature supported Arizona's 1864 abortion ban

As the state Supreme Court pointed out in its 47-page ruling, the Arizona Legislature "has never affirmatively created a right to, or independently authorized, elective abortion." Instead, it displayed an "unwavering intent since 1864" to ban nearly all abortions, the ruling stated.

The law from 1864 says that any person who provides or helps to provide drugs or "any instruments whatever, with the intention to procure the miscarriage of any woman then being with child" shall be punished with two to five years in prison. It provides an exception if a doctor believes the abortion is necessary to save the mother's life. Lawmakers updated the language in the 20th century, but the same provisions of the law exist in Arizona Revised Statute 13-3603.

When the U.S. Supreme Court overturned Roe v. Wade in June 2022, the Arizona Legislature still had its preferred law. Three months before that ruling, former Republican Gov. Doug Ducey had signed a GOP-backed law that banned abortion after 15 weeks.

It contains an exception to save the life of a mother, but only if immediately necessary, and contains no exceptions for rape or incest cases. The law's sponsor, former Sen. Nancy Barto, borrowed its language from a Mississippi law under legal challenge. The lawmakers hoped the more conservative U.S. Supreme Court would side with Mississippi, and therefore Arizona.

The measure stated explicitly it doesn't repeal the pre-Roe law. As Cathi Herrod of the anti-abortion Center for Arizona Policy explained to lawmakers in a February 2022 hearing, if Roe were overturned, that provision would mean the territorial law would go into effect. Before the full Senate's vote, Barto told colleagues she hoped the U.S. Supreme Court would overturn Roe v. Wade and rebuked Ducey after he told reporters the new, 15-week law would supersede the old law.

Last year, Petersen and House Speaker Ben Toma, R-Glendale, defended the 1864 law in an amicus brief that refers to Barto's 2022 law as a "partial proxy" for the pre-Roe law "until a reversal of Roe could reimbue the latter with full effect."

But with the GOP getting what it's sought for years, the main question for Republicans seems to be how to curtail that effect. Barto, after all, lost her seat to Democratic Sen. Christine Marsh in 2022.

What will Republicans do next?

The ruling came as Republicans continue to struggle with political division and candidate donors who may not see many great investments.

"Previous to this current situation, the Republicans were going to have to fight really hard to maintain a majority in both houses," said Kirk Adams, a former Republican state House speaker and former chief of staff to Ducey. "Now, it does make that task a little bit harder."

Adams said candidates may want to talk about the border and inflation, but the new "dynamic" will require them to say where they stand on abortion, he predicted.

Repealing the 1864 law will help candidates in swing districts by at least providing a defense, he said.

"Every Republican will be attacked on this law," he said.

Lobbyist and Republican political consultant Kevin DeMenna said lawmakers may repeal the law, but they also "have the challenge of crafting an alternative" to the ballot measure planned by abortion rights advocates.

"This is going to be a real test of the leadership in both chambers to craft something that satisfies their caucus (and) can win in November," DeMenna said. "Polling is being done. Significant interests will bring their plans to leadership and that's probably what will drive this."

The right "ballot mix" will be crucial to which side sees more voter turnout, he said.

Another incumbent in a competitive district, Senate Pro Tempore T.J. Shope of Coolidge, downplayed the notion of a political problem for Republicans. But he said he supports repealing the pre-Roe law.

"I think that it's pretty clear that that’s where the majority of the state is," he said.

The roughly 270,000 people he represents in Legislative District 16 are comfortable with the 15-week law, Shope said.

Shope was among the signers of Barto's bill. He has "no regrets," he said, but added he never supported the 1864 law, even though he knew her bill meant it could be reenacted.

"It was not a point of realization that Roe was going to be overturned," he said.

Shope's facing Democratic candidate Stacey Seaman this November. A day after the court ruling, the Arizona Democratic Legislative Candidate Committee tweeted that Seaman is ready to take on Shope and "believes in protecting reproductive freedom!"

Who's for, against a repeal of 1864 law?

A necessary first step to make a repeal happen would be to move a bill by House Democrat Stephanie Stahl Hamilton, which is what Gress tried to do. Lawmakers could also create a new one via a strike-all amendment of an existing bill.

Neither Democrats nor Republicans in the Senate have yet offered a repeal bill. A new bill would require a three-day turnaround according to legislative rules. Stahl Hamilton's bill, having already been introduced, could be moved to Hobbs' desk for a signature in one day.

Another important goal for a repeal is to get the votes for it. The thin Republican margin means if all Democrats approve it, three Republicans in the House and two in the Senate would be needed to pass it. The third Republican in the House is needed because of the recent resignation of Democratic Rep. Marcelino Quiñonez, who hasn't yet been replaced.

The votes are likely to be there for supporters of the repeal. Rep. David Cook, a Globe Republican, said on CNN April 12 he supports a repeal.

Republican Sen. Ken Bennett of Prescott, who was not in office in 2022 and didn't vote for Barto's bill, said he expects to see a repeal bill soon. He's into "protecting life," he said, but believes "you've got to figure out how you get to somewhere in the middle."

The proposed abortion rights ballot initiative, which allows abortions after fetal viability if a doctor agrees it would "protect the life or physical or mental health of the pregnant individual," "goes too far" for Bennett. But the "1864 ban, which doesn't even account for rape or incest, probably goes too far the other way."

Supporting a repeal could be risky for Bennett. Though his Legislative District 1 seat is likely safe from his Democratic challenger, he faces MAGA conservative Steve Zipperman in a primary election.

State Sen. Anthony Kern, a Trump-endorsed candidate for the 8th Congressional District seat, said he supports Trump 100% and agreed "Arizona is going to fix the issue." Kern, however, will "absolutely" vote no on any repeal bill, he said.

"Democrats are the real extremists here," he said. "The Supreme Court did the right thing. They voted on the context of the law, and that’s it."

One of Kern's competitors for the congressional primary election, state House Speaker Ben Toma, released a statement blasting Democrats for their "appalling childish" protest on the House floor April 10. But he remains open to considering a repeal, adding "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 without a larger discussion."

Toma told The Arizona Republic he doesn't support the 1864 law's repeal and believes the only exception to anti-abortion law should be to protect the health of the mother. As for a possible abortion-related ballot measure, "there are multiple options on that front."

State Sen. Shawnna Bolick of Phoenix's competitive Legislative District 4, by contrast, wrote on X two hours after the April 9 ruling that she supports the pre-statehood law's repeal and "not prosecuting women who obtain abortions or doctors who perform them under the 1864 law."

Neither the 15-week law nor the 1864 law calls for prosecuting women who get abortions.

Bolick also stated in the post she has a nephew who was "prematurely born at 19 weeks," though Guinness World Records and the UAB Hospital in Alabama declared the world record was set at 21 weeks and one day following a birth in November 2021.

Bolick signed Barto's pro-1864 bill when she was a state representative in 2022. She is the wife of state Supreme Court Justice Clint Bolick, one of the four justices who voted to uphold the pre-statehood law on April 9.

She's facing a potentially tough challenger for her appointed Senate seat in incumbent Democratic Rep. Judy Schwiebert. Appealing to constituents in her split district, she said that she will "continue protecting the most vulnerable and support access to fertility care like IVF," adding that many of her friends have used fertility services.

Asked on April 10 on the Senate floor if she was worried about her upcoming election, Bolick, without turning around as she walked away, yelled: "No, I'm not!"

Democrats ready for repeal ― and ballot measure

Senate Democratic Leader Mitzi Epstein said Democrats are prepared to vote for a repeal. The bill by Stahl Hamilton has been languishing without a committee hearing since January.

"If we don't protect women with an appropriate law that gives access to abortion, women are going to die," Epstein said. "We could pass the repeal of the 1864 ban if (Republicans) just had the nerve to show up and speak up and be here and be respectful of us."

Epstein indicated she would on Monday file an ethics complaint against Petersen and Shope for their roles to curtail Senate debate the day after the state Supreme Court ruling.

House Democratic Reps. Nancy Gutierrez of Tucson and Stacey Travers of Phoenix say they will vote for a repeal. But they added they cannot be satisfied with the 15-week law, which would take precedence after a potential repeal.

"I will still be gathering signatures like I have been for the abortion petition," Gutierrez said. "Fifteen weeks isn't enough. And that law doesn't have an out for rape or incest."

Travers added: "You can't legislate or dictate when a woman is gonna have an emergency."

"You can't say, you know what, you can only have it by 15 weeks. If you're at 24 or 28, then you're just out of luck," she said.

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Republic reporters Richard Ruelas and Mary Jo Pitzl contributed to this article.

Reach the reporter at rstern@arizonarepublic.com or 480-276-3237. Follow him on X @raystern.

This article originally appeared on Arizona Republic: Arizona abortion ban: GOP lawmakers want to undo 1864 law they backed