Why 1864 abortion ban isn’t going anywhere
The Arizona Capitol will be ground zero in the nation’s abortion debate this week, as the Republican Party scrambles to hold the line and protect the state’s 1864 law that criminalizes abortion.
For them, 1864 is the new 2024. A few Republicans will try to stage a revolt, joining with Democrats in an attempt to repeal Arizona’s new/old abortion ban.
Donald Trump is on board with that. On Friday, he practically begged the Legislature to repeal the 160-yearold law and reinstate the 15-week law enacted in 2022.
Kari Lake, meanwhile, is sounding positively pro-choice since the Arizona Supreme Court gave her exactly what she wanted — a “great law” that mandates prison terms for anyone who arranges or gives an abortion to someone who isn’t dying.
“I want to save every baby,” the Senate hopeful told a supporter last week, in the wake of the ruling that reinstates the 1864 abortion ban. “I can’t imagine any circumstance that I would choose an abortion. But I’m not standing in the shoes of a woman who’s been beaten by her pimp. I’m not standing in her shoes, and neither are you.”
Apparently, they’ve seen the polls. Specifically, an August 2022 HighGround poll that showed 70% of Arizona voters were less likely to support a candidate who wanted to criminalize abortion and 62% of likely voters believe reproductive rights should be protected.
In that poll, only 22% of likely voters said abortion should be banned in Arizona and there should be criminal penalties for medical professionals who perform them.
Several vulnerable Republicans are hoping to engineer a repeal and reinstate the 15-week ban enacted in 2022. Thus far, Reps. Matt Gress of Phoenix and David Cook of Globe and Sens. T.J. Shope of Coolidge and Shawnna Bolick of Phoenix have called for a repeal.
But I wouldn’t hold my breath waiting for their hard-right colleagues to let go of what is now one of the toughest abortion laws in the land.
Any Republican who voted for repeal knows they would face the wrath of Cathi Herrod.
She’s the head of the conservative Center for Arizona Policy, an unwavering abortion foe and the single most important voice in Republican primary politics. Republicans cross Herrod at their own political peril.
At long last, after decades of work, Arizona has reached the promised land where abortion is a felony and Herrod’s not keen to backtrack.
“It’s the dog that caught the car and he’s got his nose in the tailpipe right now,” Republican consultant Chuck Coughlin told me. “Cathi’s not going to let them off. That’s the voice in Republican primary politics. You don’t cross Cathi Herrod in the Republican
primary or you lose.”
Already, there is talk among pro-life groups of withdrawing support for Gress, who lives in one of the state’s most competitive districts.
Already, Republicans poised to vote for repeal are feeling the heat, with calls and texts going out to their constituents and pro-life forces planning to rally at the Capitol on Wednesday, when the Legislature next convenes.
“The pro life groups are framing this as all or nothing,” Cook told me. “In the view of people like (Sen. Jake) Hoffman, there can be no compromise.”
Not even, apparently, to try to head off the Arizonans for Abortion Access ballot initiative — a proposal to enshrine abortion rights in the state constitution.
Instead, Republicans are working on a plan to thwart the AAA initiative with a few ballot referrals of their own.
Gress et al. may have the votes to repeal the abortion ban, assuming every Democrat goes along.
But no vote can happen unless Senate President Warren Petersen, R-Gilbert, and House Speaker Ben Toma, RGlendale, who is running for Congress in a ruby red district, allow it.
Early last year, Republicans, terrified over their slipping one-vote margin of control of the Legislature, passed a rule that blocks any rogue Republican from doing an end run on the caucus and working with Democrats to get stuff done.
As a result, no vote can be taken unless Petersen and Toma approve.
And before you say the rules can be changed, under the new House and Senate rules Petersen and Toma must side with the majority in order to suspend or change the rules.
Given that Petersen and Toma filed an amicus brief in support of that 1864 law, it doesn’t seem likely that they now will allow a vote to repeal the law.
You know what does seem likely? That Arizona voters will go to the polls in droves this fall to pass a law that will allow abortion up to and, in some cases, beyond the point of viability.
The Arizona Abortion Access Act would be added to the state constitution, making it virtually impossible for politicians to ever change it, given that it was put there by voters.
When that happens, the pro-choice movement will have the Republican Legislature to thank — the one that held tough to their beliefs and sneered at the idea of compromise, and as a result gave us one of the most permissive abortion laws in the land.
Genius strategy.