Dem
51
GOP
49
Speaking of abortion and courts, the decision by the Arizona Supreme Court to uphold a law passed long before Arizona was even a state has roiled the presidential and senatorial election in that crucial swing state. But the effects are even more widespread than that. They go way downballot. Arizona AG Kris Mayes (D) has said that she will not prosecute anyone for violating the law. This is called prosecutorial discretion and is based on the concept that prosecutors do not have the resources to go after every criminal, so they are forced to make choices. If Mayes doesn't want to prosecute patients or doctors for an abortion, that is her call and there is no appeal.
However, local county prosecutors are not bound by her choices. They can prosecute anyone who violates the old law, no matter what Mayes wants or does. So the battle has now moved down to the level of county attorneys. In particular, there is an election for Maricopa County attorney in November and abortion is dominating the campaigns. Maricopa County covers Phoenix and its suburbs and is home to 4.6 million people. If abortion were technically illegal there but the county attorney refused to bring charges against anyone who violated the law, it would de facto be moot in Arizona's most populous county. Anyone elsewhere in the state who needed an abortion could just go to Phoenix for it.
The current Maricopa County attorney is Rachel Mitchell (R), who has said she will not prosecute women who get an abortion but is on the record saying she will follow the law, whatever it is. That means she will presumably prosecute doctors who perform abortions or write prescriptions for abortion pills. The Democratic candidate for her job, Tamika Wooten, has said: "I will not prosecute a woman for her personal health care decisions, nor will I prosecute the medical provider who performs that. That is a very serious and personal decision that a person must have with themselves and with their health care provider, and it's not my business."
Count on the election for county attorney being entirely about abortion. If Wooten wins, for 63% of the residents of Arizona, it will be (legally) safe to get an abortion. For residents of Tucson it will be a 2-hour drive to a safe space. Together, Phoenix and Tucson cover 70% of the population. Even the most distant point in Arizona is only 5 hours from Phoenix. And people who live that far from Phoenix may find it easier to go to New Mexico, Nevada, or California for an abortion.
Maricopa is not the only county with a competitive election for county attorney. There are also competitive elections in Coconino (Flagstaff), Pima (Tucson), Yavapai (Prescott) and Pinal (Casa Grande) counties. Those races could also come to hinge on abortion as well.
And there is more. Two of the Arizona Supreme Court justices who ruled that the 19th century law is still valid, Clint Bolick and Kathryn King, are up for retention elections in November. Progressives are already working on a campaign to have them defeated. If they lose their retention elections, Gov. Katie Hobbs (D-AZ) will appoint their replacements, who themselves will have to undergo a retention election in 2026.
On the whole, judging by both polling and public response, the candidates who are associated with anti-abortion positions are looking at trouble come November. This is especially true if the person supports, or at least tolerates, the 1864 law. There are certainly some people who are OK with the notion of a 15-week ban, but who recoil at a 0-week ban. It would seem that some members of the Arizona state House have taken note of this, as the chamber voted yesterday to repeal the 1864 law. The vote was 32 "yea" (29 D, 3 R) to 28 "nay" (28 R). If the Arizona state Senate passes the bill, Hobbs has already said she will sign it. Passage in the upper chamber would require at least two Republican votes (of 16), assuming all 14 Democrats vote for repeal. Since the Senate was already at work on its own repeal bill, it's very possible the two votes are there. We'll presumably find out sometime this week. (V)