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These Arizona GOP lawmakers voted to support 1864 abortion law. Now, they want to repeal it

TJ Shope
T.J. Shope at the Arizona State Capitol in 2023.

The Arizona Supreme Court issued a ruling this week reinstating a near total ban on abortion in the state. Now, a handful of Republican state lawmakers say they want to repeal that law, just two years after they voted for legislation that explicitly supported it. 

Shortly after the court published its decision, Sen. T.J. Shope (R-Coolidge) issued a statement calling on the Legislature to repeal the old, 1864 abortion ban in order to let a 15-week ban that Republicans passed in 2022 take effect instead.

“I voted yes, because I do believe in a 15 week [law], and that's what was in front of me,” Shope said. 

But that’s not all Shope was voting for two years ago.

The bill to create a 15-week ban did not include language overturning the old law. Former Sen. Nancy Barto, who sponsored the 2022 bill, said that was intentional. In fact, she pointed to a legislative intent clause in the bill that explicitly affirms the validity of the 1864 ban.

That clause said the new law did not “repeal, by implication or otherwise, [the old law], or any other applicable state law regulating or restricting abortion.”

Arizona Supreme Court justices cited that language in their ruling putting the territorial-era near-total ban back into effect. And members of Arizona’s far-right Freedom Caucus praised justices for upholding the intent of the Republican-led Legislature.

“The Supreme Court of Arizona made the correct ruling, upheld the intent of the Legislature, and preserved the rule of law today by ruling that the pre-Roe law will remain effective,” the Freedom Caucus said in a statement.

But House Minority Leader Oscar de los Santos says Democrats have regularly introduced bills to repeal the law for years, with no Republican support. 

He accused Republicans like Shope of changing their tune because polling shows voters are broadly supportive of abortion rights.

“And any effort to flip that narrative is a craven, spineless Republican attempt to save their political careers,” De Los Santos said. 

'I have no regrets'

Shope denied he flip-flopped on the issue, claiming he never thought the territorial law would actually go back into effect when he voted to preserve it.

“I don't know that any of us really actually believed that Roe v. Wade was going to be overturned,” Shope said “So it was definitely more of a theoretical, I guess, than an actual. So you vote, you vote a certain way. I have no regrets. You vote a certain way based on the information that you have at the time.” 

So far, the Republicans calling for a repeal have one thing in common: they all hail from relatively competitive legislative districts. 

That includes Sen. Shawnna Bolick (R-Phoenix) and Rep. Matt Gress (R-Phoenix).

Bolick, like Shope, voted in favor of the 2022 law that failed to repeal the territorial era law. She is also married to Arizona Supreme Court Justice Clint Bolick, who sided with the court majority that reinstated the old law.

Gress, on the other hand, wasn’t in office in 2022. On Wednesday, he was the only Republican in the Arizona House to support failed Democratic efforts to bring a bill repealing the old law to a vote.

Gress said he believes other Republicans also support allowing abortions in some cases, including pregnancies resulting from rape and incest or medical situations that threaten the life of the mother.

“Most Arizonans are on the same page,” Gress said. “Reasonable restrictions on abortion — 15 weeks is where most of us are at.”

Democrats call that explanation revisionist history. 

Rep. Stephanie Stahl Hamilton (D-Tucson) introduced a bill in January to repeal the near-total abortion ban. She said it never even received a committee hearing, and Gress never expressed support until the state Supreme Court ruled this week.

Gress, she noted, is running in the same district that Barto lost in 2022, after Barto sponsored the 15-week abortion bill now at the center of controversy.

“He’s saving his bacon,” Stahl Hamilton said. “He’s in a district where two women have flipped seats in that district.”

Despite the finger pointing, some Democratic and Republican leaders at the Legislature agree there are enough votes to pass Stahl Hamilton’s repeal.

“The votes are there to overturn,” said Shope, the Senate president pro tempore. He said Senate Democrats did not introduce a bill to overturn the law, so the Senate is waiting for a bill to pass the House. 

Shouts of ‘Shame! Shame!’ erupt in Arizona House

But, earlier in the day, both Gress and Stahl Hamilton made motions to vote on Stahl Hamilton’s repeal bill in the House, only to be stopped by Republicans, who used procedural maneuvers to instead adjourn for the day.

Democrats chanted “shame on you” at the Republicans as they left the floor. They also yelled “blood on your hands” and “save women’s lives.”

A similar scenario played out in the Senate. 

As Republicans voted to adjourn for the week, Democrats made a procedural motion, essentially using the Senate’s rules in an attempt to force a vote on a motion by Sen. Anna Hernandez (D-Phoenix) to vote on a repeal bill.

Senate Minority Leader Mitzi Epstein (D-Tempe) said that bill would have passed.

“Even with our missing Democrats, our knowledge is we could pass the repeal of the 1864 ban if they just had the nerve to show up, and speak up, and be here and, and be respectful of us,” Epstein said.

But Republicans adjourned anyway over Democrats’ objections. 

“This is completely out of order,” Epstein yelled. 

A Senate rules attorney told the Democrats that the Republicans did violate the rules, but because the Democrats had no authority to restart the session without Republicans, they couldn't do anything about it.

Epstein said she may file an ethics complaint.

“You should hang your heads over there on the other side of the aisle,” Epstein called to Republicans as they walked out. “You are disrespecting the people of Arizona by disrespecting the people who represent it.”

The repeals aren’t dead in either chamber, though.

House Speaker Ben Toma (R-Peoria) said he personally opposes repealing the territorial-era law, but he expects the issue will come to a vote again. 

But that won’t happen anytime soon. Lawmakers are adjourned until next Wednesday.

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Wayne Schutsky is a broadcast field correspondent covering Arizona politics on KJZZ. He has over a decade of experience as a journalist reporting on local communities in Arizona and the state Capitol.