Arizona House Speaker finds himself in eye of abortion rights tornado

April 21, 2024

Arizona state House Speaker Ben Toma (R) is facing a reckoning as he tries to navigate the fallout from Arizona’s Supreme Court decision enforcing an 1864 abortion ban.  

Since the decision last week, Toma has twice helped block House Democrats’ efforts to repeal the ban on procedural grounds.  

Toma is facing pressure from national Republicans, including former President Trump and Kari Lake, who want to see the Civil War-era ban repealed, which would then reinstate a 15-week ban passed in 2022. 

But Toma is also running for Congress in a crowded Republican primary, where voters and anti-abortion groups are not likely to reward him for compromising in favor of a less restrictive abortion ban. 

Like many other conservatives across the country, Toma and the Republicans in Arizona’s Legislature have long believed abortion was immoral and should be banned. Yet, the Supreme Court’s decision to overturn Roe v. Wade has showcased how the issue can be a nuanced one for Republicans and Democrats alike.  

Last year, Toma defended the 1864 law in an amicus brief to the state Supreme Court. 

But those beliefs are now running into the political reality that there is no safe position for Republicans to take on abortion. The backlash against the territorial ban could upend conservative majorities in the state and hurt Trump’s campaign in the crucial swing state.  

“Abortion is a very complicated topic. It is ethically morally complex. I understand that we have deeply held beliefs. And I would ask everyone in this chamber to respect the fact that some of us believe that abortion is in fact the murder of children,” Toma said on the House floor Wednesday as he voted to block Democrats from bringing the repeal bill to the floor.  

Toma maintains there’s no rush to vote on repeal because no bill can take effect until 90 days after the Legislature adjourns for the year. Lawmakers still have unfinished business, including passing a budget, so adjournment is not imminent. 

Arizona became the latest battleground state over abortion access when the state Supreme Court upheld a Civil War-era law that bans nearly all abortions in the state except in instances to save the life of the mother. The law also imposes jail time for physicians who perform abortions.

One day before the ruling, Trump tried to neutralize the issue by saying states are making their own policies on abortion. 

But after the Arizona court’s ruling, the former president tried to temper his seeming endorsement for letting states decide. He told reporters the ruling went too far and suggested it “will be straightened out.”  

Senate hopeful Lake, a Trump ally, also opposed the ruling and was personally lobbying Arizona lawmakers to repeal the law. 

Despite the pressure, Toma has helped block two attempts at allowing the state House to consider repealing the 1864 law. On the most recent attempt, only one Republican, state Rep. Matt Gress (R), voted alongside Democrats. 

On the state Senate side, two Republicans voted alongside Democrats to waive the rules and allow legislation that would repeal the 1864 law to proceed. 

Toma signaled the effort wouldn’t go anywhere in the lower chamber in an interview with Axios earlier this week.  

State Rep. David Cook (R) said he thinks there are enough Republicans in the House who will support a repeal bill as soon as next week when the Legislature meets again, even if Toma continues to oppose it.  

He told The Hill there’s been no official whip message from GOP leaders. 

“This decision has been the hardest to navigate through in my entire eight years at the legislature,” Cook said. “Come Wednesday, I firmly believe that the repeal bill is going to hit on the board and get voted on in the House.”  

GOP strategists who know Toma said they expect him to stay the course and continue to oppose repealing the 1864 law.  

“For him, this is playing out OK. As long as [members don’t override him], he’s fine with it. And if he gets rolled, well, Ben Toma is looking good because he is doing everything he can to keep the territorial law in place, which is probably what the Republican primary voters in his district want,” said Arizona-based Republican strategist Barrett Marson. 

Kirk Adams, a former GOP Arizona House Speaker, said Toma is trying to navigate competing personal and political crosswinds.  

While Toma may benefit from opposing a repeal of the pre-statehood ban in a congressional GOP primary for a Republican-leaning seat, keeping it in place may cost state Republicans the majority. Both chambers of the Arizona Legislature have a one-seat GOP majority. 

“This is the precise dilemma of running in a congressional primary and being Speaker because these two interests collide,” Adams explained. “There’s no doubt about it that not repealing this law puts the majority at stake, at risk, right, and that will hurt those members in those swing districts.”  

Stan Barnes, a Republican consultant who previously served in Arizona’s state Senate, said even the most ardent anti-abortion legislators will have to compromise if they want some kind of abortion restrictions.  

“Pro-life people can see if we enter the election with the 1864 law and 24 weeks on the ballot, 24 weeks will win,” Barnes said, referring to a likely ballot measure that would protect abortion up to the point of viability. 

“The pro-life movement is having a moment but what good is it if it lasts six months?” 

As Republicans weigh their options, a leaked slideshow presentation circulated among Republican state lawmakers this week proposed offering a counter referendum to the ballot measure Democrats are likely to get on the November ballot this year, which would enshrine abortion protections into the state Constitution.  

If both chambers of the Legislature can pass the same language, it would automatically get on the ballot in November. 

Cook said the Republican caucus is making progress about a potential path forward, and he would support a referendum banning abortion after 15 weeks, with exceptions for rape, incest and to save the mother’s life.  

“But it’s hard to get the votes put together. Because we do have people that will not vote on anything,” he said. 

Arizona political consultant Max Fose said political self-interest usually wins out. But he noted that continued opposition to repeal even in the face of a national outcry can be a way for Toma to tout his steadfast anti-abortion credentials.  

“Toma’s in a pickle that’s also an opportunity for him politically. This is a way for Toma to stand out with the Republican primary with voters who are … more than likely 1,000 percent pro-life,” said Fose, a longtime campaign worker for former Sen. John McCain (R-Ariz).

But “that’s a competing interest with what Donald Trump and Kari Lake want, for this to not be a driving force for Democrats in the general election.” 

Some members of the GOP argue abortion isn’t easily negotiable as other issues might be.  

Former Rep. Matt Salmon (R-Ariz.), who previously served as assistant majority leader in the state Senate before being elected to Congress, said Toma is following his conscience, not the primary politics. 

“There’s so many things — I mean, immigration, you name it, there’s so many things that people can negotiate on,” Salmon said. “But life with some, if that is an intensely, deepfelt moral issue with you, it’s not something that you just use as a throwaway card. It’s not political like Kari Lake and Trump are making it.”