Arizona accepts Trump's invitation, abolishes reproductive liberty.

April 9, 2024

On Monday, Trump said states are free to deprive women of reproductive liberty. On Tuesday, the Arizona Supreme Court accepted Trump's invitation and abolished the right of women in Arizona to obtain abortion healthcare at any stage of pregnancy. Under the Arizona court’s decision, any person who assists a woman in obtaining an abortion can be sentenced to prison for up to five years. The underlying statute was first enacted in 1864—half a century before Arizona became a state, before slavery was abolished, and before women had secured the right to vote.

The ruling was so shocking and outrageous that prominent Arizona Republicans (including Kari Lake and former Governor Doug Ducey) immediately condemned the decision—hollow protests belied by their past statements in support of the 1864 law’s total ban on abortion.

However, the outcome of Tuesday’s decision is precisely the result that Arizona Republicans sought for fifty years. Although the law at issue in Tuesday’s decision was first enacted in 1864, the Arizona legislature re-codified and re-enacted the law on multiple occasions before and after Arizona became a state in 1912. The Arizona legislature re-codified the 1864 law most recently in 1977—a recodification that affirmed the total ban on abortions and related criminal penalties.

After the US Supreme Court recognized a federal constitutional right to abortion in Roe v. Wade in 1973, Arizona passed dozens of laws that sought to regulate and restrict the federal right recognized in Roe. None of the laws passed after Roe repealed the 1864 law—which remained on the books in Arizona as a ticking time bomb, waiting to explode if Roe was overruled.

When the US Supreme Court overruled Roe in 2022, Arizona Republicans sought to enforce the 1864 law (as re-codified in 1977), claiming that it had not been repealed and was still effective. On Tuesday, the Arizona Supreme Court agreed with Arizona Republicans, stating:

Therefore, because the federal constitutional right to abortion that overrode [the 1864 law] no longer exists, the statute is now enforceable, prospectively prohibiting abortion unless necessary to save a woman’s life.

In light of this Opinion, physicians are now on notice that all abortions, except those necessary to save a woman's life, are illegal . . . .

See Planned Parenthood of Arizona v. Mayes | 254 Ariz. 401.

As widely reported, the ruling will go into effect in fourteen days. But the Arizona Supreme Court granted a two-week stay of its decision to give the trial court the opportunity to enter its own stay. The Arizona Supreme Court said,

We stay enforcement of [the 1864 law] for fourteen days to permit the parties, on remand, to determine whether to pursue remaining issues raised in the trial court and, if so, to request further stay relief at the trial court’s discretion.

The enforcement status of the 1864 law (and modern update) is uncertain. The Arizona governor (Democrat Katie Hobbs) and attorney general (Democrat Kris Mays) have both vowed not to prosecute women who seek abortions or doctors who perform them. See The Guardian, Arizona supreme court upholds 1864 law banning almost all abortions

GOP Senate candidate Kari Lake celebrated the possible resurrection of the 1864 statute before Roe was overruled while on the campaign trail (in her run for governor). Now that the decision in Dobbs has abrogated the federal right recognized in Roe, Lake is scrambling to distance herself from enforcement of the 1864 law.

See The Daily Beast, Kari Lake Blasts Abortion Ban She Once Was ‘Thrilled’ About:

Lake, who previously called the 1864 ban a “great law,” said she opposes Tuesday’s ruling and called on the state legislature to come up with an “immediate common sense solution that Arizonans can support.

President Biden immediately issued a statement condemning the decision:

Millions of Arizonans will soon live under an even more extreme and dangerous abortion ban, which fails to protect women even when their health is at risk or in tragic cases of rape or incest.

This cruel ban was first enacted in 1864—more than 150 years ago, before Arizona was even a state and well before women had secured the right to vote. This ruling is a result of the extreme agenda of Republican elected officials who are committed to ripping away women’s freedom.
 
Vice President Harris and I stand with the vast majority of Americans who support a woman’s right to choose. We will continue to fight to protect reproductive rights and call on Congress to pass a law restoring the protections of Roe v. Wade for women in every state.

The difference could not be starker: President Biden promises to sign a bill restoring the federal right to reproductive liberty recognized in Roe v. Wade and Donald Trump promises to support a state’s right to imprison a doctor who provides abortion healthcare.

Arizona voters will have an opportunity in November to amend their constitution to read as follows:

Every individual has a fundamental right to abortion, and the state shall not enact, adopt or enforce any law, regulation, policy or practice that does any of the following:

1. Denies, restricts or interferes with that right before fetal viability unless justified by a compelling state interest that is achieved by the least restrictive means.

2. Denies, restricts or interferes with an abortion after fetal viability that, in the good faith judgment of a treating health care professional, is necessary to protect the life or physical or mental health of the pregnant individual.

3. Penalizes any individual or entity for aiding or assisting a pregnant individual in exercising the individual’s right to abortion as provided in this section.

The decision by the Arizona Supreme Court is an insult to every woman in Arizona and a threat to every person in Arizona who may provide care to a woman seeking abortion healthcare in the future. It is the logical conclusion and penultimate goal of the anti-choice movement. (They won’t stop until they also ban contraception.)

For all of the anger and outrage provoked by the decision, the ruling and the November ballot initiative will drive Arizonans to the polls in record numbers to reclaim their personal liberties. The citizens of Arizona have good reason to hope that they will re-establish the right to reproductive liberty in November, elect Democrat Ruben Gallego to the US Senate (by defeating Kari Lake), and deliver Arizona’s electoral ballots to Joe Biden.

Moreover, Arizona’s Democrats have reason to hope that they will flip the Arizona legislature. Democratic Legislative Campaign Committee President Heather Williams said

Arizona [is] one of the most important battlegrounds in 2024 [and Democrats are] just a handful of seats away from flipping each chamber of the Arizona state legislature.

Republicans have achieved almost everything they hoped for—over the objection of the majority of the American people. They are imposing a reactionary social agenda that was wrong in 1864 and worse in 2024. They will regret their overreach.

But Democrats cannot take anything for granted. We must ensure that voters stand up at the polls for the rights of women, their partners, their families, and healthcare providers.

We have seen the future under Republican control—and it is Arizona, if we fail to undo the decision of the Arizona Supreme Court issued on Tuesday.

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Additional news

The decision by the Arizona Supreme Court deserved the lengthy attention above. But there were additional stories that deserved attention. They include:

• The EPA issued new regulations to cut cancer-causing emissions from chemical plants across the nation. See NPR, EPA's new rule aims to cut cancer-causing air pollution from chemical plants. (“The new rule affects dozens of chemicals, and it's the first time the national emissions standards for hazardous organic pollutants have been amended in 30 years.”)

• As expected, Ukrainian President Vlodymer Zelensky rejected Trump's “secret peace plan” to end Russia’s war on the Ukrainian people. Zelenskyy Bashes Trump's Secret Plan to End Ukraine War (businessinsider.com).

• As Speaker Johnson continues to struggle with the decision to allow a vote for aid to Ukraine, Rep. Marjorie Taylor Greene has issued another threat to hold a vote on removing Johnson from the Speaker’s chair. House Republicans Set The Stage For Another Total Meltdown | HuffPost Latest News. In normal times, this story would be the biggest news of the week, if not the month.

• A campaign staffer for RFK Jr. described the campaign strategy as forcing the presidential election to the House of Representatives, where Trump is likely to win. See RFK Jr. New York campaign official says her ‘No. 1 priority’ is preventing a Biden victory | CNN Politics. As usual, the Kennedy campaign denies unequivocal statements coming from his campaign staff. Don’t believe his denials!

• A judge on New York’s appellate court denied an emergency request to delay Trump's election interference trial so the appellate division could rule on his challenge to the gag order. The appellate panel will hear that challenge on April 15, 2024—the day that jury selection is scheduled to commence. Appeals court rejects Trump's latest attempt to delay hush money trial | AP News.

• Trouble at Truth Social: The price of Truth Social’s stock has plummeted over the last two weeks, erasing all of the gains Trump made after the issuance of new shares in the company. See Trump Media stock erases all gains since it began trading as shares fall another 11% Monday (nbcnews.com).

• It turns out that the outside auditor for Truth Social’s parent company has been plagued by findings of deficiencies in every audit for public company clients reviewed by a federal watchdog agency. See Trump Media's accounting firm has 100% deficiency rate from watchdog | Fortune. Is anyone surprised?

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Concluding Thoughts

I took over 900 photos of the eclipse. I was sorting through the thumbnails on a bus ride this morning and found a photo I had overlooked. Posted below is the moment of “first contact,” when the moon first begins to eclipse the sun. The photo shows the cloudy conditions that persisted through much of the eclipse. Although the uncertainty kept us on the edge of our seats for nearly two hours, the clouds added drama to photos that would have otherwise been an intense white sphere occluded by a black disc.

When I speak to readers and grassroots volunteers, a thought that I frequently include is this: “Things are going to get better; they may get worse before they get better, but they will get better.”

The decision by the Arizona Supreme Court highlights that saying perfectly. The immediate result is horrible for women and men in Arizona. But we can see the path to victory. We are going to reverse the grotesquely cruel and reactionary decision by the Arizona Supreme Court. It is only a question of “when.”

The decision is a lagging indicator of support for the anti-choice movement in the Republican Party. Some Republicans (like Kari Lake) tried to back away, while others (like Senator Rick Scott) endorsed the ruling. When Rick Scott realizes his mistake, he will also try to back away from an abortion ban that is even more reactionary than the current six-week ban in Florida.

The hopeful political outlook is small consolation to women who are facing difficult or tragic choices in an environment where their freedom is constrained by a law written by a handful of white men during the Civil War. But we must hold tightly to that small consolation as we do the hard work of reclaiming liberty that should have never been denied women in the first instance.

In every election after 2016 (and most before), women have carried democracy on their backs. It is time for us to repay that debt of gratitude with overwhelming support for their personal liberties, which are on every ballot in every state in 2024. Let’s show up in record numbers to show our support for our sisters in the battle for democracy!

Talk to you tomorrow!

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First contact: The edge of the moon appears in the bottom right quadrant of the sun, at the four o'clock position.