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Arizona Capitol
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Under Pressure, Arizona Republicans Are Left to Handle the State’s 1864 Abortion Ban

The state legislature will meet this week and could take up a repeal of the near-total abortion ban. But even with Trump calling for it, the path is not certain.

Republicans in Arizona have a chance this week to limit the political fallout from the cataclysmic court ruling enforcing a century-old law that bans virtually all abortion in the state. The question is whether they’ll do anything at all.

When the state legislature meets on Wednesday, members can put forward a repeal of the pre-state abortion law after not doing so last week. There’s growing pressure on Republicans to act, including from within their own national party, but state party leaders have been quiet about any possible plans so far.

“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,” Arizona House Speaker Ben Toma said in a statement after pushing aside a repeal attempt last week.

Republican state Rep. Matt Gress, who backed last week’s effort, said on “Meet the Press NOW” that he feels “very confident” that there will be a vote to repeal the law on Wednesday “and that it will prevail.”

The stakes go beyond just what happens in Arizona. Abortion is a central issue in the state’s elections this year, which could be pivotal for control of the House, Senate and presidency, and voters are already set to decide the future of the state’s abortion policy in a ballot measure. Former President Donald Trump, who now says states should determine abortion access, has called on the Arizona legislature to undo the pre-state law.

“The Governor and the Arizona Legislature must use HEART, COMMON SENSE, and ACT IMMEDIATELY, to remedy what has happened,” he posted on Truth Social.

Republicans, who have a two-seat majority in both houses of the state legislature, have failed to repeal or block the 1864 law. Gress of Phoenix tried to get a vote last week to remove the pre-state ban via a bill put forward by Tucson Democrat Stephanie Stahl Hamilton, but the effort was undercut by other Republicans, who instead put forward a motion to recess.

So far, the only other Republican lawmakers who have come out in favor of repealing the law are Rep. David Cook of Globe, who voted to recess last week; Sen. T.J. Shope of Coolidge, who supported the 2022 15-week law, which said it would not nullify the pre-state law; and Sen. Shawnna Bolick of Phoenix, who previously supported the territorial abortion law while she was a state representative in 2022.

Whatever the legislature does will ultimately have significant consequences for the state’s highly competitive congressional races this fall. Republicans in those races — Senate candidate Kari Lake and Reps. David Schweikert and Juan Ciscomani — have come out against the state Supreme Court ruling and the underlying pre-state law.

But the political calculus has been strained. Lake’s position on abortion is different from when she ran for governor just two years ago. She now says she opposes a federal ban on abortion, following Trump’s lead. However, Lake supported the pre-state abortion law during her gubernatorial bid and also came out in favor of Texas’ SB8 and called for its implementation in Arizona. The Texas state law, which went into effect once Roe was overturned, would prohibit abortion as soon as a fetal heartbeat was detected.

Matt Grodsky, chief strategist for Conor O’Callaghan, one of Schweikert’s primary challengers, told NOTUS that Republicans could stop some of the political fallout on abortion by repealing the old law.

If the Republicans vote to “‘fix’ this,” he said, “they could slow some of the initiative. Something we all need to watch is the risk of split-ticket voters: backers of the initiative who still vote for GOP candidates.”

Polling has consistently shown that Arizonans oppose total abortion bans. Democrats are hoping the November ballot measure, which would enshrine the right to an abortion until viability in the state constitution, will drive turnout in their direction for the close presidential, congressional and Senate races.

“Most agree it is going to pass,” Doug Cole, a longtime Republican political consultant in Phoenix, told NOTUS of the ballot measure.

If the ballot measure does pass, it will become law as soon as the election canvass is certified, which will be in late November or December.

What the state legislature does now is crucial, Cole said, to determine what abortion law is between now and when the canvass is certified. According to Cole, if the legislature manages to repeal the old law, it will not go into effect until 90 days after the legislative session is officially over for the year. The only way to speed this process up during a regular legislative session is to get an emergency clause, which requires 20 votes in the Senate and 40 votes in the House.

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With one vacancy in the House, the emergency clause needs 12 Republicans in the House and six in the Senate to pass. However, the governor could call a special session of the legislature to repeal the abortion ban, which can coincide with a regular session, to speed up the 90-day clock. In that case, without an emergency clause, the law would go into effect 90 days after the end of the special session instead of at the end of the term of the legislative session in a regular session.

The state Supreme Court case was prompted by the fact that Arizona has two laws on the books regarding abortion. Besides its territorial law, there is a 2022 law that bans abortion after 15 weeks, with exceptions for the life of the mother. Like both the pre-state and 2022 law, the ballot measure does not include exceptions post-viability for rape or incest.

Tara Kavaler is a NOTUS reporter and an Allbritton Journalism Institute fellow.