GOP Senate Candidates Are Racing To Rewrite Past Abortion Positions. Democrats Are Counting On Voters To See Through It.

Sam Brown, the likely Nevada Republican nominee to take on Sen. Jacky Rosen (D-Nev.), is hoping that a splashy interview alongside his wife is enough to cancel out his anti-abortion record. Control of the Senate this November could hang on the success or failure of such a public relations gambit.

Brown, an Army captain wounded in the war in Afghanistan, and his wife Amy, sat for an extensive interview with NBC News in late February about Amys abortion prior to meeting Sam.

The interview had a clear objective for Brown: negate or minimize abortion as a major issue in his upcoming election in a pro-choice state . While personally opposed to abortion with exceptions for rape, incest, and the life of the mother Brown vowed to respect Nevada law allowing abortions up to the 24th week of pregnancy.

For those skeptical of Browns position, he offered his empathy for his wifes decision to end a pregnancy before meeting him as evidence of his sincerity. Weve got to lead with compassion. And this is not just a policy issue, he told NBC News. Were talking about peoples lives.

Pressed by NBC News to explain his past support for a 20-week ban in Texas, while running for the state legislature there in 2014, Brown characterized it as an extension of the same states rights approach that drives his respect for Nevada law. Left unaddressed: Browns recent tenure as volunteer head of the anti-abortion Nevada Faith and Freedom Coalition ; his refusal to articulate his stance on federal abortion restrictions as recently as July ; his attendance of an anti-abortion rights gala in October; and perhaps most importantly, the kinds of judges he would vote to confirm to the federal bench.

The disjunction between Browns interview and his remarks up to that point is a microcosm of the broader challenge facing Republicans as they seek to retake the Senate on a map that favors their candidates. To win, they must move past their unpopular support for the overturning of the nationwide abortion rights granted by the Roe v. Wade decision. That task is made more difficult by Democrats determination to hang these GOP candidates anti-abortion records around their necks and portray them as threats to abortion rights, in vitro fertilization, and even contraception. 

Beyond Brown, the leading Republican Senate candidates in Arizona, Pennsylvania and Michigan are similarly hoping that voters will trust their more moderate statements as candidates this cycle, rather than judge them for toeing the socially conservative line years or even months earlier.

Its all part of a deliberate strategy by national Republicans to get in front of an issue that played a major role in enabling Democrats to gain a Senate seat in 2022, and that is still the liberal partys best hope of holding the chamber on a November map where the GOP holds a decisive upper hand. 

Senate Republicans campaign arm, the National Republican Senatorial Committee, has presented its public opinion research on abortion to every campaign and Senate chief of staff. The partys message: Define yourself on abortion, or Democrats will do it for you.

The default assumption about Republicans is national ban, and then people associate Democrats with womens rights, said a national Republican strategist, who requested anonymity to speak freely about their partys Senate strategy. So if you are someone who has a more nuanced view or wants to throw some nuance on it, counter-intuitively you do have to talk about it more and make it clear.

The national GOP strategist added that while the party informs candidates that a state-level ban at 15 weeks of pregnancy polls well, and a national ban is like political suicide at this point, the most important thing is that candidates lay out their position early and avoid confusion.

Tackling abortion head-on the way Brown has is a departure from the approach of several Republican candidates in key races in 2022, who either tried to ignore the issue , or to deflect from their own positions by accusing Democrats of wanting to abort fetuses until the point of birth.

Democrats remain confident though that the substance of a candidates abortion rights message and the credibility of the messenger are more important than the timing of an announcement or the decision to speak about the topic in itself.

These people cant walk away from stuff theyve said before, said Joe Calvello, a senior adviser on Pennsylvania Sen. John Fettermans (D) successful 2022 race. Voters arent that stupid. Check the tape!

Indeed, thats what Rosen is counting on in Nevada.

Nevada is an overwhelmingly pro-choice state, and voters will see right through Browns desperate attempt to cover up his anti-abortion record during an election year, Rosen campaign spokesperson Johanna Warshaw said in a statement. The truth is Sam Brown would be a direct threat to Nevadans reproductive freedom in the Senate.

Democrats are betting that voters will see the multitude of ways GOP senators would help restrict access to abortion, even if they now insist they wouldnt support abortion bans. HuffPost reached out to the leading GOP candidates for Senate in four major swing states Brown, Kari Lake in Arizona, Mike Rogers in Michigan and Dave McCormick in Pennsylvania for more details on their stances on abortion rights. All four were silent on the Supreme Court case heard last week aiming to ban mifepristone, a pill now used in over 60% of American abortions. All would be expected to back the same type of conservative judges who overturned Roe v. Wade in the first place.

In his previous public remarks about the mifepristone case at the Supreme Court, Brown offered no insight into his personal views on the matter. The court will hear their arguments and make their case and thats something that well wait and see what the courts do, Brown told KTVN News , a Reno TV station, in March.

When asked by HuffPost about apparent shifts in his abortion position prior to his NBC News interview, his campaign denied that he had ever changed his stance. His affiliation with various anti-abortion groups reflect his pro-life views, but do not conflict with his belief that it is best decided by states, Kristy Wilkinson, a Brown campaign spokesperson, said in a statement.

Sam has consistently stated that he is pro-life, with exceptions for rape, incest, and the life of the mother. Sam does not and will not support a national abortion ban, Wilkinson said. Nevada voters have made their position clear, and Sam respects the U.S. Constitution and the right of states to craft their own laws.

From Protecting Life At Conception To Respecting State Law

Its easiest to cast doubt on a candidates newfound moderation when they are well-defined in the public eye, as is the case for Kari Lake, the likely Republican Senate nominee in Arizona. 

Lake, a longtime local newscaster who became one of Donald Trump s most unapologetic loyalists, has a clear record on the topic. As a candidate in June 2022, Lake celebrated the Supreme Courts Dobbs decision overturning a federal right to abortion. In a primary debate later that month, Lake affirmed that she believes that life begins at conception, and that abortion pills should be illegal. She also said she supported a complete abortion ban known as the territorial law, because Arizona enacted it in 1864, when it was still a territory. Arizona re-codified the ban, which only offers an exception for the life of the mother, in 1912 after it had become a state.

Asked at the debate whether she wanted the territorial law to take effect, or prefers a newer law banning the practice after 15 weeks of pregnancy, Lake replied, I think the older law is going to go into effect. Thats what I believe will happen.

Ted Simons, the Arizona PBS host moderating the debate, pressed for clarity: OK, but you approve of that at conception?

I believe that life begins at conception, Lake responded, suggesting she had no problem with the territorial laws complete ban.

But the scales have tilted against anti-abortion hardliners in Arizona since Lake made those remarks. In December 2022, an Arizona appeals court ruled that the territorial ban did not override the states 15-week ban, passed in March 2022. The decision effectively legalized abortion in the state up to 15 weeks of pregnancy, but anti-abortion groups appealed to the state supreme court on the matter, which heard arguments in December.

At the same time, abortion rights advocates are poised to put a state-level constitutional amendment on the ballot this November that would codify abortion rights through the point of fetal viability, or 24 weeks of pregnancy.

This past November, Lake was already trying to downplay her support for the complete ban as an outgrowth of her belief that it should be handled at the state level. Asked about her support for the territorial ban, Lake told ABC15 Arizona , I havent changed.

What I said was, Im running for governor, not emperor. I dont write the laws, she added. The legislature writes the laws and as the chief executive of the state, you uphold the laws.

But in an interview with NBC News in March, Lake declared her support for the 15-week ban, while appearing to acknowledge that a ballot referendum might allow for an even more permissive system.

Its probably going to be the 15th week or whatever is in this ballot initiative, she said. I trust the people of Arizona to vote on this, if thats what happens, and get this right.

Gallego is already reminding people of Lakes history of more hardline positions. Kari Lake will say or do anything to get power, but her position is clear: she supports banning abortion without exceptions for rape or incest, and will ban medication abortion, Gallego campaign spokesperson Hannah Goss said in a statement. Arizonans wont be fooled by her attempts to erase her record.

A similar, albeit less public story is playing out in Michigan, where former Rep. Mike Rogers is a leading contender for the Republican Senate nomination.

As a member of the House from 2001 to 2015, Rogers co-sponsored four different fetal personhood bills that would completely ban abortion nationwide: in 2005 , 2007 , 2009 , and 2013 .

Then, as a Senate candidate this past September , Rogers promised that he would do nothing to infringe on Michigans law protecting abortion rights. In a 2022 ballot initiative, Michigan voters amended their state constitution to make abortion a right through the first 24 weeks of a pregnancy.

Rogers campaign responded to a list of detailed questions about his abortion position by essentially reiterating his view that it is a state-level issue. 

The people of Michigan spoke in a loud and clear voice in 2022 and I will take no action as their voice in Washington that is at odds with the Michigan Constitution, Rogers said in a statement to HuffPost.

In Pennsylvania, where Republican David McCormick, a former hedge fund manager, is challenging Sen. Bob Casey (D), Democrats have pointed to McCormicks remarks at a GOP Senate primary debate in April 2022 as evidence of his extreme views. In the debate, McCormick said that he supported prohibiting abortion except for cases where the life of the mother is at risk , suggesting he did not support exceptions for rape and incest. 

Asked by a moderator whether he would support exceptions for rape, incest, or the life of the mother, McCormick replied, I believe in the very rare instances there should be exceptions for life of the mother.

McCormicks campaign also did not register its objections to several press accounts representing that as his position based on his remarks at the debate.

But McCormicks 2024 campaign provided HuffPost with an audio recording from an event he held in Bethel Park, Pennsylvania , in February 2022, where he states that he backs the other exceptions as well.

I do have three exceptions the ones you just said rape, incest, and the life of the mother, he said in response to a question from a voter. Thats the same position Ronald Reagan had. Thats the same position Donald Trump has.

High Stakes For The Federal Bench

The U.S. Supreme Court heard oral arguments on March 26 in a case that could determine whether the abortion drug mifepristone will remain available across the country.

Even the conservative justices on the court sounded unreceptive to the arguments put forth by a group of anti-abortion doctors.

But the cases very elevation to the U.S. Supreme Court illustrated the rightward drift of the federal judiciary as a whole. 

Mifepristone access came under threat last April when Matthew Kacsmaryk, a federal judge in Texas appointed by former President Donald Trump, ruled that the Food and Drug Administration had wrongly approved the drug in 2000. Due to a conflicting ruling by a more liberal federal judge in Washington State, the Supreme Court felt obligated to weigh in.

Even if Kacsmaryks ruling is ultimately discarded, his opinion invoked the Comstock Act, an obscure 1873 law against mailing obscene materials, to invalidate the FDAs 2021 rule enabling mifepristone to be sent by mail. The 5th Circuit Court of Appeals in New Orleans did not uphold Kacsmaryks rejection of the abortion pills approval in 2000, but did uphold the part of his ruling blocking the mailing of the pill on the grounds that it probably violated the Comstock Act.

Mary Ziegler, an expert in reproductive health law at the University of California, Davis, School of Law, described a Republican presidents ability to appoint ever more right-wing judges in Kacsmaryks mold as a way to shift the Overton window such that existing arch-conservatives like the judges on the 5th Circuit Court seem reasonable by comparison. That in turn might make Supreme Court justices like Brett Kavanaugh, who are conservative but not the farthest right on abortion, give rulings like the 5th Circuits a closer look. 

And of course, Kacsmaryk never makes it to the federal bench in the first place without Republican control of the Senate. He was confirmed in 2019 without the support of a single Democrat.

A lot of decisions on reproductive rights stay at the lower court level, and also the lower courts can kind of shift the Overton window and normalize action by the Supreme Court, Ziegler said. A Republican Senate could significantly undercut the reproductive rights that are being recognized in states.

Liberal jurists and abortion rights advocates now fear that the Comstock Act , which they maintain has not been enforced in decades, could be used to invalidate the transfer of other abortion-related materials by mail. 

Unified Democratic control of the federal government would make it possible for Biden to repeal the Comstock Act; control of one legislative chamber would enable Democrats to make noise about the old law in a way that would undermine abortion opponents standing.

Control of the House and Senate decides how the Comstock Act gets dealt with, Ziegler said.

The nightmare scenario for abortion rights advocates, however, is a Supreme Court ruling recognizing fetal personhood. Such a decision would effectively ban abortion nationwide and make moot Republican Senate candidates assurances about respecting states abortion laws. It would very likely threaten the legality of in-vitro fertilization programs as well, notwithstanding Brown, Lake, Rogers, and McCormicks support for those services availability.

That kind of sweeping ruling is still many years away, but abortion opponents, who spent four decades trying to overturn the federal right to abortion, are in it for the long haul. Appointing more and more right-wing judges to the federal bench could eventually lead to a conservative Supreme Court large enough to accommodate a hardline anti-abortion majority, Ziegler said.

Theyre building toward a U.S. Supreme Court personhood ruling down the road, she said.