Arizona Republicans condemn their own abortion policy

Arizona Republican Senate Candidate Kari Lake on Capitol Hill on March, 6 2024. (Photo by Kent Nishimura/Getty Images)

On Tuesday, the Arizona Supreme Court issued a bombshell decision banning virtually all abortions in the state. The majority found that since the Supreme Court overturned Roe v. Wade, a near-total ban from 1864 — before Arizona was a state — was back in effect. That law prohibits all abortions except to save the life of the mother. Doctors and others who assist women in obtaining an abortion face years in prison:

A person who provides, supplies or administers to a pregnant woman, or procures such woman to take any medicine, drugs or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless it is necessary to save her life, shall be punished by imprisonment in the state prison for not less than two years nor more than five years.

"In light of this Opinion, physicians are now on notice that all abortions, except those necessary to save a woman’s life, are illegal," Justice John Lopez wrote for the majority. Lopez rejected the argument that an Arizona law prohibiting abortion after 15 weeks, enacted in 2022 shortly before Roe was overturned, superseded the older law. "The legislature has demonstrated its consistent design to restrict elective abortion to the degree permitted by the Supremacy Clause and an unwavering intent since 1864 to proscribe elective abortions absent a federal constitutional right," Lopez argued. 

Although the decision was stayed for two weeks, the political shockwaves were immediate. 59% of Arizona voters believe that abortion should be "mostly or always legal." Arizona Republicans facing competitive elections quickly attempted to distance themselves from the decision. But many of these same Republicans have previously supported the 1864 law or equivalent policies that would ban abortion from the moment of conception. 

United States Senate candidate Kari Lake (R) released a statement saying, “I oppose today’s ruling, and I am calling on Katie Hobbs and the State Legislature to come up with an immediate common sense solution that Arizonans can support.” 

In 2022, however, Lake called the 1864 abortion ban “a great law.” In June 2022, Lake said in a primary debate that “she believes life begins at conception and that abortion pills should be illegal.” Lake has also called abortion the “ultimate sin.” When Roe was overturned, Lake celebrated, saying, “I’m so happy that we’re going to be saving the lives of the unborn and finally protecting the rights of the unborn. I believe in Life, Liberty, and the Pursuit of Happiness for All Arizonans, including our unborn.” 

During her current campaign for the Senate, Lake has attempted to backtrack. In an interview with NBC News last month, she claimed she did not support the 1864 law.

Representative Juan Ciscomani (R-AZ) released a statement calling the ruling “a disaster for women and providers.” In the statement, Ciscomani expressed his support for the 15-week ban. Ciscomani argued that his “record shows” that he is “a strong supporter of empowering women to make their own healthcare choices.” 

Ciscomani’s record actually shows that he “vot[ed] to prohibit mail delivery and retail pharmacy sales of abortion medications as part of an appropriations bill,” the Tucson Agenda reported. He also "co-sponsored a bill to prohibit the use of federal funds, including ACA Marketplace insurance providers, from paying for abortion care." After Roe was overturned, Ciscomani “applaud[ed]” the decision, saying, “These policies should be set by states and by We the People. I’m proudly Pro-Life and will always defend life as a member of Congress.” 

Representative David Schweikert (R-AZ) wrote on X that he does “not support today’s ruling from the AZ Supreme Court.” Schweikert said, “This issue should be decided by Arizonans, not legislated from the bench. I encourage the state legislature to address this issue immediately.” 

But Schweikert has “co-sponsored the Life at Conception Act six times over the course of a decade,” Rolling Stone reported. That legislation “would extend 14th Amendment protections to unborn children,” effectively outlawing abortion nationwide. Schweikert has an A+ rating from the anti-abortion group Susan B. Anthony Pro-Life America, which states that Schweikert “has voted consistently to defend the lives of the unborn.”

Some Arizona Republicans at the state level are also condemning the ruling. But these same Republicans paved the way for it to go into effect. Arizona State Senator Shawnna Bolick (R) posted on X that “it is time for my legislative colleagues to find common ground of common sense” and that “the first step is to repeal the territorial law.”

Bolick was among the co-sponsors of the 2022 legislation to ban abortions after 15 weeks. The legislation explicitly states that it does not “[r]epeal, by implication or otherwise” the 1864 ban “or any other applicable state law regulating or restricting abortion.” Former Arizona State Senator Nancy Barto (R), the prime sponsor of the bill, explicitly stated that it "makes it clear that the complete ban would go into effect if Roe is overturned.” Cathi Herrod, president of the Center for Arizona Policy, the organization that crafted the legislation, argued that “[i]f Roe is overturned… abortion is not legal in Arizona because of the pre-Roe law.” Bolick called a proposed constitutional amendment to protect abortion rights “an assault on God’s value and sovereignty regarding the sanctity of human life.” 

Arizona State Representative Matt Gress (R) denounced the ruling, saying it “cannot stand.” Gress said in a statement on X, “I cannot and will not condemn women, especially the victims of rape or incest, to be forced to carry their pregnancy to term.” Gress endorsed the 15-week ban and called for a measure to “repeal the territorial ban.” But, in 2023, Gress sponsored multiple “fetal personhood” bills that, if they had become law, would have “declared fetuses as people, which would have also rendered abortion illegal.” Gress also celebrated the overturning of Roe on X, posting, “Life Wins. The Supreme Court made the right legal and Constitutional decision by allowing states to set their own policies on the issue of life. #LifeWins #ProLifeGeneration.”

State Senator T.J. Shope (R) also denounced the ruling in a statement on X. Shope said the ruling was “disappointing” and “ignored our legislative intent.” Shope pledged to “immediately work with my legislative colleagues to repeal the territorial law” and reinstate the 15 week limit. But Shope co-sponsored the 2022 legislation to ban abortions after 15 weeks, which included language saying the intent of the bill was not to repeal or replace the territorial law.

Trump's incoherent response

On Monday, former President Donald Trump released a video saying abortion policy should be left to the states. "Whatever they decide must be the law of the land — in this case, the law of the state," Trump said. Some states, Trump acknowledged, will be "more conservative," but "that’s what they will be." 

After the Arizona Supreme Court released its decision, Trump campaign spokesperson Karoline Leavitt appeared supportive. "President Trump could not have been more clear," Leavitt said. "These are decisions for people of each state to make."

But as the backlash to the Arizona Supreme Court's decision grew, Trump reversed course and said restoring the 1864 law went "too far" and "needs to be straightened out." Trump predicted that the Arizona legislature would quickly address the issue, but that appears to be incorrect. On Wednesday, Democrats in the Arizona legislature attempted to force a vote on legislation to repeal the 1864 law. But they were rebuffed by Republican leadership. 

It also doesn't seem like a repeal vote will happen anytime soon. House Speaker Ben Toma (R) told Axios "that he wouldn't support a repeal and wouldn't permit a vote on it."

Trump also "did not elaborate on what he thinks the level of restrictions and access should be in Arizona or any other state." He also "ignored questions about how he plans to vote himself on Florida’s pending state constitutional amendment that would enshrine abortion access as a right."

Arizona voters' chance

While Arizona's legislature and judiciary have acted to restrict abortion rights, the state's voters may get a chance to flip the script in November. The Arizona Abortion Access Act (AAA), a proposed amendment to the state constitution, was filed with Arizona's Secretary of State last November. The AAA establishes a fundamental right to abortion and prohibits restrictions on abortion before fetal viability except to protect the health of the patient.

The AAA will appear on the ballot this November if its supporters gather at least 383,923 signatures by July 3. Earlier this month, the coalition of abortion rights advocates announced they had already secured 506,892 petition signatures. The signature drive will continue since some signatures can be invalidated in the verification process. But the constitutional amendment "appears on track to go before voters this fall."

Two of the Arizona justices who voted to reimpose the state's 1864 law — Clint Bolick and Kathryn King — will also appear on the ballot this fall. Bolick and King will face a "retention" election. That means they do not face an opponent, but voters will decide whether they should be retained or replaced.