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Battle over right to an abortion continues for Arizona lawmakers

Pro-choice supporters chant in from of Yuma City Hall on Tuesday, June 28, 2022.
Victor Calderón/KAWC
Pro-choice supporters chant in from of Yuma City Hall on Tuesday, June 28, 2022.

By Howard Fischer
Capitol Media Services

PHOENIX -- House Republicans are weighing putting one or more of their own abortion measures on the ballot in a bid to undermine an initiative to enshrine the right to terminate a pregnancy in the Arizona Constitution.
The plan, obtained by Capitol Media Services, starts with one option that would appear to look like the Arizona Abortion Access initiative, but with additional restrictions. But its wording also would appear to preserve the right of lawmakers to enact new regulations of their own, something the initiative would not permit.
But the ideas being discussed also include having the Republican-controlled Legislature also put two other measures on abortion on the ballot, one at 15 weeks and one called a "heartbeat'' bill to outlaw the procedure at just six weeks. Linley Wilson, the House attorney who crafted the plan, told lawmakers in her presentation that such an approach would split the votes on the Nov. 5 ballot, something she said would make it more likely that the initiative would fail.
And there's something else. Wilson said adopting one or more of these plans also could have political benefits for Republicans who have found themselves on the defensive since the Arizona Supreme Court ruled last week the state can again enforce its 1864 law outlawing the procedure except to save the life of the mother.
House Speaker Ben Toma told Capitol Media Services the proposal should come as no surprise.
"The document presents ideas drafted for internal discussion and consideration within the caucus,'' said the Peoria Republican who also is running to be the Republican nominee for the U.S. House seat being vacated at the end of the year by Rep. Debbie Lesko.
"I've publicly stated that we are looking at options to address this subject,'' the speaker continued. "And this is simply part of that.''
But Dawn Penich, speaking for the initiative, said the plans come from "anti-abortion politicians ... showing their dishonest attempt to refer multiple competing abortion bans to the November ballot.''
"This shows yet again why Arizonans can't leave our most basic and personal rights in the hands of politicians,'' she said. Penich said only by approving the initiative -- and its constitutional right of abortion access -- will voters "finally have peace of mind and reliable protections against these relentless political schemes aimed at creating chaos, lying to voters and robbing us of our fundamental right to make decisions about our own lives.''
And Christian Slater, press aide to Gov. Katie Hobbs who supports the initiative, accused Republicans of "playing gross, cynical politics to undermine women's reproductive rights.'' He said there's a simpler plan: repeal the 1864 law.
There are several Republicans in both the House and Senate have said publicly they support repeal of the territorial-era law when the Legislature convenes again on Wednesday. That puts pressure on GOP leaders: With Democrats all apparently aligned, that would provide enough votes.
If the 1864 law is gone, that would leave only a 2022 statute that allows the procedure until the 15th week of pregnancy. More to the point, it would render last week's state Supreme Court ruling allowing enforcement of the earlier law legally meaningless.
At the same time, the idea of repeal is running up against opposition from some GOP lawmakers who actually want to keep the 1864 law in place. That includes Toma who, along with Senate President Warren Petersen, filed legal briefs in that Supreme Court case urging them to uphold the enforceability of that law.
And then there's the fact that backers of the Arizona Abortion Access initiative already have gathered more than the 383,923 signatures they need to put their plan to voters in November.
It would guarantee a right to abortion through fetal viability -- generally considered between 22 to 24 weeks of pregnancy -- but beyond that to save the life or health of the mother.
The problem for Republicans is that there are indications that if voters have only a binary choice of either that measure or the 1864 law that is an all-but-comprehensive abortion ban, they will approve the initiative. That's exactly what happened last year when Ohio voters faced the same options.
In her presentation, Wilson said a scaled-back version would "give voters something other than the extreme abortion-on-demand AAA initiative.''
What that includes starts with be a constitutional requirement for doctors to obtain informed consent of a patient, a requirement for parental consent for an abortion on a minor, a ban on abortions if the sole reason someone seeks it is because of the race or sex of the fetus, and a ban on "partial-birth'' abortions, a term not defined in the proposal.
But there may be less there than meets the eye. It would still allow lawmakers to "enact laws rationally related to promoting or preserving life.''
Wilson concedes as much, pointing out this options "does not create a right to abortion'' as would the initiative.
She's even suggested names for the plan designed to attract voters, like the "Protect Pregnant Women and Safe Abortions Act'' or the "Arizona Abortion Protection Act.''
More comprehensive would be the hard-and-fast bans at certain points in pregnancy that also would go to voters.
What Wilson has dubbed "The 15-week Reproductive Care and Abortion Act'' would allow a pregnancy to be terminated after that only if was determined to be medically necessary to save the life of the woman or "to prevent serious risk of substantial and irreversible impairment of a major bodily function of the woman.''
That compares with the initiative which says an abortion can be performed at any point during pregnancy when a doctor says it is necessary "to protect the life or physical or mental health of the pregnant individual.''
And it would allow abortions if a fetus has a fatal abnormality.
There would not, however, be an exception beyond 15 weeks in cases of rape or incest.
The plan also would put another measure on the ballot.
Dubbed the "Heartbeat Protection Act,'' it contains many of the same restrictions on the procedure after the fifth week of pregnancy. It does, however, contain an exception for rape, incest or human trafficking -- but only if the abortion is performed before the 14th week of pregnancy.
Wilson said the plan could pull votes from the initiative -- but only if lawmakers act fast.
She noted that constitutional measures go on the ballot in the order received.
"Voters would read (the) Legislature's referral first on the ballot,'' she said -- but only if they get a plan to the Secretary of State's Office before initiative backers turn in their signatures. The deadline for that is July 3.
And then there are the political benefits to Republicans.
"Changes narrative,'' she wrote in the presentation.
"Republicans have a plan!'' Wilson continued. "And its much more reasonable than the AAA initiative.''
Wilson also said that having a competing ballot measure that includes specific prohibitions "puts Democrats in a defensive position to argue against partial-birth abortions, discriminatory abortions, and other basic protections.''
Also Monday, Senate Democrats filed a complaint against two Republican leaders accusing them of violating rules by ignoring their efforts last week to get recognized and advance a measure to repeal the 1864 abortion law.
Senate Minority Leader Mitzi Epstein said she is not seeking actual punishment against Senate President pro-tem T.J. Shope who decided to consider a motion to adjourn on Wednesday over vocal calls and protests by Democrats to instead consider the abortion issue. Instead, the Tempe Democrat said, she wants an acknowledgment by Shope, who was presiding over the Senate, that he violated rules, an apology -- and a promise to rectify the issue when the Democrats try again this coming Wednesday.
But Shope, a Coolidge Republican, said that's not going to happen.
He told Capitol Media Services that he was obliged to take a vote on the motion by Senate Majority Leader Sonny Borrelli to adjourn for the day. That's because Borrelli had the floor -- the recognition to speak -- and had specifically called for an immediate vote.
That left Epstein and Sen. Anna Hernandez, D-Phoenix, both of whom had sought recognition, on the Senate floor vocally complaining. But, officially speaking, those complaints were to no one at all as Shope already had left, having declared the session over.
On X and Threads: @azcapmedia