Dem lawmakers say ethics complaints over abortion ban repeal outburst should be thrown out

As Rep. Matt Gress, R-Phoenix, speaks to reporters, on the floor of the House of Representatives on April 10, 2024, Democratic lawmakers look on and chastise him. Democratic Reps. Oscar De Los Santos and Analise Ortiz are now facing ethics complaints because of their protests on the House floor. Photo by Gloria Rebecca Gomez | Arizona Mirror

The ethics complaints lodged against two Democratic lawmakers for protesting Arizona Republicans’ refusal to repeal a 160-year-old abortion law should be thrown out, according to the duo’s attorney. 

“In order to protect the spirit of debate and the marketplace of ideas on the floor of the Arizona Legislature, the Committee must not interpret rules of decorum and civility as barring passionate debate,” attorney Jim Barton wrote on May 1, in letters responding to the complaints. 

What happened?

On April 10, a day after the Arizona Supreme Court ruled that a near-total abortion ban from 1864 could once again be enforced, Democrats in the state House of Representatives pushed for a vote to repeal the law. After the GOP-majority chose instead to block that move, Democrats in the chamber erupted into furious shouts of “Shame!”, “Save women’s lives!” and “Blood on your hands!”, while pointing and waving at Republican lawmakers across the aisle, most of whom quickly filed out through a side door. The protest was led by Minority Leader Oscar De Los Santos, the No. 2 Democrat in the House, and Rep. Analise Ortiz, D-Phoenix, an outspoken abortion rights advocate. 

The angry display continued when Rep. Matt Gress, the only Republican in the chamber who supported the Democratic bid to repeal the law, remained behind to speak with reporters after the rest of his party had dispersed. Ortiz and De Los Santos, along with a handful of other Democrats, disrupted interviews with Gress and called on reporters to ignore him, saying that he didn’t care if women died. Ortiz pointed to Gress’ track record of introducing fetal personhood laws and his siding with the rest of his party to delay the vote on a repeal as proof that the Phoenix Republican was being insincere. 

While the emotional reaction from Democrats was repeatedly criticized by Republicans during later debates on whether to repeal the 1864 law, the bid to do so eventually succeeded two weeks later, on April 24. That same day, three anti-abortion Republicans, Reps. Jacqueline Parker, Barbara Parker and David Marshall — all of whom voted against the repeal — filed an ethics complaint against De Los Santos and Ortiz for their actions during the first repeal attempt. The trio accused the Democrats of “insurrectionist behavior” and violating the legislature’s standard for disorderly conduct, and urged the House Ethics Committee to launch an investigation. 

Attorney: uphold free speech rights and dismiss the complaint

Barton said that opening an investigation into what was nothing more than “passionate debate” would risk chilling the free speech rights of all the chamber’s members. Ethics complaints, he added, should be reserved for truly egregious violations, but the ones launched at De Los Santos and Ortiz are clearly nothing more than political retaliation and they should be rejected. 

“The issue for the Ethics Committee to consider is whether it will take this as an opportunity to turn the tide of overblown rhetoric and political games, and indeed take these complaints as an opportunity to establish an environment in the House of Representatives that fosters free exchange of ideas,” Barton wrote. 

In the ethics complaint, Republicans said the angry reactions from De Los Santos and Ortiz made some lawmakers fear for their safety, and accused the two of improperly disrupting the legislative process to force a vote on the repeal. Barton dismissed claims that lawmakers were concerned about their safety, saying that legislators cannot be expected to moderate every emotional reaction to avoid making others “uncomfortable,” especially during such controversial debates as that concerning abortion access. And while Barton acknowledged that De Los Santos and Ortiz began yelling before the gavel fell and the House went into recess, he said their intent wasn’t to offend Republicans, but rather to convince them to take up the vote. 

“When dealing with restricting the access to medical procedures that are literally a matter of life and death, use of the phrase ‘Shame, Shame’ is not offensive,” Barton wrote. “Calling out delay tactics employed by the Majority is not intended to hold members of the Republican Caucus up to contempt”; it is intended to call them to action.”

Barton particularly objected to the multiple accusations in the complaint that De Los Santos and Ortiz’s behavior amounted to inciting an insurrection. Insurrections by definition involve violence and are intended to undermine official actions, according to Barton. The two Democrats neither threatened anyone nor sought to interrupt legislative proceedings; instead they were “expressing anger that the official actions were unnecessarily delayed.” Barton criticized what he said was clearly an effort to equate the reactions from De Los Santos and Ortiz with the assault on the U.S. Capitol on January 6, 2021 and said the committee members should rebuke such hyperbolic claims. 

Instead of endangering the exercise of free speech in the House by agreeing to investigate the two lawmakers, Barton suggested that the committee consider more clearly defining what constitutes disorderly conduct. While the legislature has deemed such behavior worthy of an ethics violation, a definition for the crime doesn’t exist in state law and the complaints filed in the legislature based on that charge tend to rely on historical descriptions. The complaint against De Los Santos and Ortiz cites a legal definition used in a legal dictionary from 1910, that describes it as behavior that “scandalizes the community and is offensive to the public sense of morality”, is contrary to law, or conflicts with “good order and decorum”.  

The committee might also consider looking into the unjust retaliation taken against De Los Santos by GOP leadership, Barton added. Minutes after the House voted to repeal the 1864 law, House Speaker Ben Toma, who was vocally opposed to doing so, removed De Los Santos from the Rules and Appropriations Committees, with no explanation. 

“The Majority has already disrespected this very process by doling out a punishment to (De Los Santos) before any ethics complaint was even filed,” Barton wrote. “Perhaps this Committee’s holdings should comment on such an abuse of process and recommend Representative De Los Santos’s reinstatement.” 

In the end, Barton said, the display from Ortiz and De Los Santos was nothing more than an emotional protest, and not something that rises to the level of an ethics violation.

“The matters considered by the Arizona House of Representatives are important; they impact the life and liberty of everyday Arizonans; sometimes, they will demand a passionate response. Dissent cannot be made synonymous with Disorderly Behavior,” he wrote.

What could be the outcome?

It’s up to the House Ethics Committee to decide whether it will open an investigation, but if it does it can only make recommendations on what actions the full state House of Representatives can take. A formal censure or expulsion must be voted on by the entire chamber. And while censuring Ortiz or De Los Santos only requires a majority vote, a move to expel either of the two would require a supermajority vote — a distinct impossibility, as it would mean the support of Democratic lawmakers as well as Republicans. It’s also unclear if a vote to censure the duo would prove successful. The complaint relies heavily on the actions taken against Gress, who joined Democrats in voting down the 1864 law. Gress didn’t respond to requests for comment on whether he would testify against the Democrats  or if he thought their behavior merited an investigation at all, but if the Republican refuses to side with the rest of his party in a censure vote, his objection could kill the move to punish the duo. 

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