Late Tuesday, April 9, the Arizona Supreme Court ruled that abortion be banned in almost all circumstances. The judges rejected in a four to two vote the 2022 15-week abortion ban passed by former Governor Doug Ducey, instead lifting a stay on a Civil War era ban making it a felony to perform an abortion unless there is a direct risk to the mother’s life.
Opposition to the ruling came swiftly from Arizona Attorney General Kris Mayes, Democrat Governor Katie Hobbs, and the White House. “This ruling is a result of the extreme agenda of Republican elected officials who are committed to ripping away women’s freedom,” the White House immediately noted.
The opposition’s framing suggests that this ruling will be a significant issue come November. But is the 160-year-old law likely to stand? And what will be the political price for those who support it? We spoke with Liberty Nation’s Legal Affairs Editor Scott D. Cosenza to get to the facts behind the façade.
Abortion on the Ballot
Mark Angelides: Scott, there are 14 days before this becomes state law, allowing time for challenges to be issued. What will opponents of the ruling do during this time?
Scott D. Cosenza: Pro-choice groups will likely file suit in federal court, hoping to see the Arizona Supreme Court decision temporarily stopped until the federal courts deal with the appeal on its merits later on. This will also give rise to massively successful fundraising and political campaigns for progressive and pro-choice groups. They will also likely appeal some other issues with the state trial court, which may result in a stay in enforcement on different grounds.
MA: Is everything as plain as it seems? Did the four judges who voted to reinstate a law that existed before there was even an Arizona expect this to stand? Or is there some legal interplay taking place?
SDC: Mark, the justices in the majority made a plain language statement that I think addresses your questions directly and also pours cold water on any attempt to paint them as ideologues:
“A policy matter of this gravity must ultimately be resolved by our citizens through the legislature or the initiative process. Today, we decline to make this weighty policy decision because such judgments are reserved for our citizens. Instead, we merely follow our limited constitutional role and duty to interpret the law as written.”
MA: Governor Hobbs and the White House came out pretty strong against this, framing it as part of an “extreme” Republican agenda. But notably, Kari Lake – former GOP contender for governor and present candidate for Senate – condemned the 1864 law and called for the governor and state legislature to “come up with an immediate common sense solution that Arizonans can support.” It looks as though there are very few people– politicians of either stripe – who support it; so what’s happening?
SDC: Arizona lawmakers have never let up on criminalizing abortion. Before Roe, it was a crime. After Roe, they criminalized or limited abortion to the maximum extent allowed by the precedent. People in Arizona who want legal abortions need to win state legislative elections. I suspect that prospect will be a bit easier with this ruling to campaign on.
November Surprises?
MA: Going forward, Arizona looks like it will have a question on the November ballot regarding the future of abortion in the state. Florida also has a similar ballot measure on the same day. With abortion being such an animating issue for so many, it seems that this is likely going to be a benefit to Democrats. What’s your take on it?
SDC: According to the 2023 Gallup Poll, 66% of Americans want abortion legal in the first trimester of pregnancy. I think putting women and doctors in prison cells for seeking or performing abortions will go over like a lead balloon in most battleground states.
MA: Notably, former President Donald Trump on Monday, April 8, announced that his presidential policy towards abortion would basically be the same as the US Supreme Court ruling in Dobbs vs. Women’s Health, which sent the matter back to the states. In terms of political optics, this is bad timing for him because this was a state-level decision. Why did the judges rule on this yesterday and not last week or next week?
SDC: I presume the opinion was released when it and the dissent were ready for publication, without regard to political ramifications or Mr. Trump’s statement.
MA: Trump’s position is that he won’t do anything from an executive position. And in reality, it seems that codifying abortion into some kind of federal law is practically impossible unless the US Senate can muster a supermajority. So what will President Biden do other than gripe at the status quo? Is there anything he actually can do at a federal level?
SDC: I assume “Roe” as a standard for the law polls well, which is why I keep hearing President Biden say he wants to codify Roe in the federal law. That, however, makes no sense to me because Roe v. Wade was a Supreme Court decision from 1973 that was heavily modified before the 2022 Dobbs decision overturning it. I suspect the president and Democrats generally are overjoyed at a decision they can use to mine key voters. Undecideds in swing states will determine these races, and it seems terribly unlikely these people will be staunchly pro-life, supporting the most restrictive abortion ban allowed.
MA: If Biden wins in November, I suspect we’ll see a swathe of attempts to create federal protections for abortion. These will almost certainly be challenged. If this happens, does that mean the cases would eventually end at the US Supreme Court? And wouldn’t the justices reiterate their position from Dobbs?
SDC: Yes. The US Supreme Court is far from done ruling on abortion issues. The composition of the Court is the same now as it was for Dobbs, with one exception – Justice Ketanji Brown Jackson has replaced Justice Stephen Breyer. While I generally loathe predicting Supreme Court outcomes, here is an exception to that rule. I’m confident Ketanji Brown Jackson will be at least as receptive as Breyer to arguments that the Constitution protects a right to abortion.
Justice Antonin Scalia wrote in 1992’s Planned Parenthood v. Casey, “The States may, if they wish, permit abortion on demand, but the Constitution does not require them to do so. The permissibility of abortion and the limitations upon it are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.” I expect further decisions from the court as currently constituted to mirror this thinking, only replacing “permit” with “prohibit.”
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