Dem
51
GOP
49
Another day, another all-Republican state Supreme Court giving the Democrats ammunition for the 2024 campaign. Last week, it was Florida. Yesterday, it was Arizona, as the Supreme Court there ruled 4-2 that a very old Arizona law prohibiting all abortions from the point of conception, unless the life of the mother is at risk, is valid.
Here, in case you'd like to read it for yourself, is the law in question:
A person who provides, supplies or administers to a pregnant woman, or procures such woman to take any medicine, drugs or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless it is necessary to save her life, shall be punished by imprisonment in the state prison for not less than two years nor more than five years.
A great many of the headlines yesterday noted that the law was first hammered out in 1864, and was formally codified as part of Arizona law in 1901, meaning it predates statehood (1912). This framing gives the impression that the timeline somehow makes the law invalid, but this is not the case. The Northwest Ordinance, which governs the process by which a territory becomes a state, makes clear that ordinances passed during the territorial era carry the force of law once statehood is achieved.
Instead, the argument made by lawyers from Planned Parenthood and other pro-choice groups was that subsequent Arizona laws, such as the one from 2022 prohibiting abortions past 15 weeks, had superseded the territory-era law. Chief Justice Robert M. Brutinel and Vice Chief Justice Ann Timmer, who happen to be the two Jan Brewer appointees remaining on the court, agreed with this argument. Four of the Doug Ducey appointees did not, resulting in a 4-2 decision. The fifth Doug Ducey appointee, Bill Montgomery, recused himself after it came out that he'd posted messages to Facebook that said things like Planned Parenthood is guilty of "the greatest generational genocide known to man." So, we have a pretty good idea of how he would have voted, if he had participated in the decision.
At the moment, the Court's decision is stayed, as the justices have ordered a lower court to take another look at some elements of the case. There is also another, separate, case pending that will extend things a bit further. So, abortion procedures will be available for roughly another month, even if the current status quo holds. In addition, Gov. Katie Hobbs (D-AZ) and state AG Kris Mayes (D) have both said they will not enforce the more draconian limit. That might afford little protection for doctors and clinics in counties or cities with a zealous and/or ambitious Republican city attorney, however.
Is there going to be any political fallout from this decision? Hmmm... let's see:
So, Democrats are treating this like manna from heaven. And Republicans who have any need whatsoever for some non-MAGA votes are running for the hills.
Clearly, the decision is going to loom large in November. Even if the courts decide that maybe the 1901 law isn't OK after all, or the Republican-dominated Arizona legislature steps in with a repeal, supporters of abortion access in Arizona have been put on notice. They will surely turn out in droves to vote on the (likely) initiative protecting abortion access, which should give the blue team a boost in the presidential and Senate elections, not to mention the swingy House elections.
Meanwhile, the timing could not have been worse for Donald Trump. He makes a big show of backing states' rights when it comes to abortion, and less than 24 hours later, a state gives an object lesson in the most extreme application of that approach. You can tell Trump knows this is a disaster for him, as his only abortion-related "truth" on Tuesday was a link to a ball-washing piece from Marc Thiessen praising Trump for his shrewd political maneuvering on the abortion issue. Wonder if Thiessen wishes he could have that one back?
The big question of the cycle, at least for the Democrats, is whether the more viable path to victory for Biden is through the Rust Belt or the Sun Belt. With recent events in Florida and Arizona, it would seem that the answer is "the Sun Belt." (Z)