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September 26, 2022
Last Friday, Arizona Republicans managed to resurrect a Civil War-era law that imposes a near-total ban on abortion. They did so through a combination of legislative action and judicial intervention. As a result, anyone who performs an abortion in Arizona at any stage of pregnancy can be sentenced to two to five years in prison despite the fact that the Arizona legislature recently enacted a law permitting abortions for up to fifteen weeks. The century-old law does contain an exception for a doctor who acts to save the life of a woman; not so with the recently passed 15-week ban. The net effect of the laws is that not even doctors can perform an abortion to save the life of the mother.
White House press secretary Karine Jean-Pierre said that the potential consequences of the ruling are “catastrophic, dangerous, and unacceptable.” Jeane-Pierre also said that the judicial ruling resurrecting the statute set women in Arizona back “more than a century”—a statement that invokes no exaggeration. The law imposing a total abortion ban was enacted by a territorial legislature in 1864—five decades before Arizona was admitted to the Union.
But before looking at the procedural machinations that resulted in Arizona enforcing a law that pre-dates its existence as a state, let’s look at the political ramifications. Those ramifications may help Democrats retain the Senate and pass national legislation codifying the protections of Roe v. Wade. But let’s get to the point: As one reader noted in the Comments section over the weekend,
A 157-year-old law from before the state was a state, when women were not allowed to vote, is now the controlling law on women’s right to choose. If this doesn't bring voters out in mass numbers in 45 days, nothing will.
At a time when Republicans are pretending the Dobbs decision did not eliminate reproductive liberty from the Constitution, the ruling of the Arizona judge allowing enforcement of a 157-year-old ban on abortion was unwelcome news for the GOP. Indeed, Republicans running for high-profile offices in Arizona have said nothing about the ruling, a ruling secured by Arizona’s current GOP Attorney General. As noted by NBC
Republican candidates were silent a day after the ruling, which said the state can prosecute doctors and others who assist with abortion unless it is necessary to save the mother’s life. Kari Lake, the GOP candidate for governor, and Blake Masters, the Senate candidate, did not comment.
The silence by Blake Masters is telling. He is the hand-picked candidate of billionaire Peter Thiel and ran on an anti-choice platform to secure the GOP nomination for US Senate. After Masters secured the nomination, he removed references from his website proclaiming that he is “100% pro-life” and touting his support for a “fetal personhood” amendment to the Constitution. Masters apparently believes that Arizonans have no memory and are incapable of performing a search of the internet’s unforgiving archives. Masters was already in trouble before the ruling on Friday, which will only add to his defensive campaign posture. Per The Hill,
Masters, the Peter Thiel protégé-turned-politician, found himself on the wrong side of the multiple developments last week, headlined by the cancellation of $9.6 million worth of ads by the Senate Leadership Fund—a group backed by Senate Minority Leader Mitch McConnell. In addition, a new poll on Thursday commissioned by AARP showed [Democrat Senator] Kelly leading by 8 percentage points.
So, in full recognition of the hardships imposed by the denial of reproductive liberty for the women in Arizona, we should also recognize that the continued efforts by extremist Republicans to impose their extremist religious views on everyone in America will backfire. The question is not “whether” but “when” the issue of reproductive liberty will permanently end the GOP’s effort to convert America into a Christian nationalist theocracy.
The Arizona ruling seemed to be a bolt out of the blue, so readers asked me to discuss the historical and procedural background of the ruling. Let’s take a quick look.
The history of the Arizona statute banning abortion. Professor Heather Cox Richardson has covered this topic in depth in her September 24, 2022 post on Letters from an American. You will not find a better historical summary, so I highly recommend that you read Professor Richardson’s post. (And while you are at her Substack website, subscribe to her newsletter if you are not already a subscriber.)
Given the in-depth coverage by Professor Richardson, I will briefly note that the Arizona Territorial Legislature met in 1864 and adopted a “code” of laws for the territory that was written by a single person—an appellate judge in the territory. That code of laws sought to impose law and order on a lawless territory.
As Professor Richardson notes, the original territorial code prohibited actions intended to “procur[e] miscarriage”, which (in context) seemed designed to protect women from male violence, but was later reinterpreted as a ban an abortion:
The law that is currently interpreted to outlaw abortion care seemed designed to keep men in the chaos of the Civil War from inflicting damage on others—including pregnant women—rather than to police women’s reproductive care . . . .
It thus seems doubtful that the Arizona legislature intended to regulate reproductive liberty but instead intended to prevent violence against women in a lawless territory. The prohibition against poisoning was subsequently interpreted as a complete ban on abortion.
Subsequent legal history. Statutes adopted by the Arizona Territory remained in effect when Arizona became a state. The original “territorial code” was later updated and re-issued in its entirety in 1956. The statute criminalizing poisoning “with intent to procure a miscarriage” was re-codified as Arizona Revised Statutes Title 13. Criminal Code § 13-3603. Section 13-3603 remained in effect until the decision in Roe v. Wade in 1973, at which time enforcement of the statute was enjoined or “stayed by injunction.”
The Arizona legislature again updated its code in 1977, but left Section 13-3603 “on the books,” despite the injunction based on the ruling in Roe.
After the ruling in Dobbs, the Arizona legislature passed a 15-week abortion ban with no exception for rape, incest, or medical emergency. In passing the 15-week ban, the Arizona legislature specifically provided that it is was not repealing Section 13-3603.
The Arizona Attorney General, a Republican, then sued to lift the injunction against enforcement of Section 13-3603. Arizona Superior Court Judge Kellie Johnson granted the Attorney General’s request to lift the stay given the reversal of Roe. Her ruling had the effect of resurrecting the enforceability of Section 13-3603—a result that the Arizona legislature specifically contemplated when it expressly left Section 13-603 on the books when it passed the 15-week abortion ban.
What happens next? It pains me to say that the Arizona Supreme Court is likely to uphold Judge Kellie Johnson’s ruling. This outcome is the result of the Arizona legislature hoped to achieve by leaving Section 13-3603 on the books after the decision in Roe and when it passed a fifteen-week ban. The most efficient and effective remedy is for Arizona Democrats to take control of the legislature and repeal both Section 13-603 and the just-passed 15-week abortion ban. (Republicans currently hold a 2-seat majority in the state Senate and a 3-seat majority in the state House of Representatives.) And then Arizonans should amend the state constitution to protect reproductive liberty to remove all doubt.
GOP 2022 midterm platform.
Kevin McCarthy released the GOP “Commitment to America”, which sets forth the legislative agenda if Republicans take control of the House in 2022. The “commitments” are so vague they are a joke. Republicans are against inflation, for energy independence, against crime, for healthcare, and in favor of constitutional liberties. Who isn’t? But the “devil is in the details”, which are nowhere mentioned in the plan. Of course, the “commitment’ fails to mention the GOP plan to repeal the Affordable Care Act, sunset Medicare, ignore the climate crisis, and abolish reproductive liberty.
It also fails to mention that the House GOP caucus intends to open investigations into Democrats who have investigated the assault on the Capitol and Congress on January 6th. Indeed, it is possible (likely) that House Republicans will impeach Joe Biden just for kicks. See The Hill, Mace says there is ‘pressure on the Republicans’ to impeach Biden if they win House.
In other words, we should expect that Republicans will do nothing to advance the interests of the American people if they regain control of the House—just as they failed to do anything when they controlled both chambers of Congress and the presidency in 2017-2018. The GOP’s “revenge agenda” increases the urgency of completing the criminal investigations into Trump relating to January 6th and charging him (if appropriate) ASAP!
January 6th Committee Hearing update.
The January 6th Committee has done a great job of preventing leaks from members. That is about to change because a former Republican staff member is publishing a book on Monday, September 27, 2002. The staffer, Denver Riggleman, revealed that “the White House switchboard connected a call to a Capitol rioter's phone on January 6, 2021.” See CBS News, Riggleman: Meadows' text trove revealed a “roadmap to an attempted coup”
If Trump was in communication with rioters during the assault on the Capitol, the January 6th Committee must disclose that fact to the American people. It is possible that the call from the White House switchboard may not have connected, but the identity of the intended recipient of the call may still be important. Did the White House (or Trump) call the head of the Oath Keepers? Proud Boys? Facts like those would matter in establishing Trump’s intent in his hours-long delay on January 6th.
Putin’s nuclear threats and the administration response.
Putin’s talk of nuclear retaliation if Russia is threatened is anxiety producing. But we should take heart from the fact that the US foreign policy is in the capable hands of seasoned professionals. On Sunday, Anthony Blinken disclosed that the US has been in communication with Russia to advise that country of “catastrophic” consequences if Russia uses strategic nuclear weapons. See NYTimes, U.S. Warns Russia of ‘Catastrophic Consequences’ if It Uses Nuclear Weapons.
The most reassuring fact in the NYTimes article is that despite Putin’s threats, Russia has made no changes to the readiness of its 2,000 strategic nuclear weapons. That fact suggests that Putin’s bluffs are just that—so far.
Opportunities for reader involvement.
Over the weekend, I opened the Comments section to all readers and invited organizations in need of volunteers to us the Comments section to promote their organizations and highlight volunteer opportunities. I “pinned” those comments to the top of the Comments section so if you want to peruse volunteer opportunities, check out this link: Join the conversation! - by Robert B. Hubbell (substack.com).
A quick note on how to access the Comments section (a question I received from dozens of readers over the weekend). At the top and bottom of the newsletter are various icons. The first is a “heart”, which you can click to “like” a newsletter. Next to the heart icon is a “text” or “dialog” icon. Click on the dialog icon and it will take you to the Comments section. Everyone can read the Comments, although only paying subscribers can leave a Comment (except when I open the Comments section to everyone as I have for the past several weekends). Every subscriber—paid and free—can communicate with me directly by “replying” to the email containing the newsletter.
Readers left dozens of thoughtful comments over the weekend in response to the “open call” for comments. One post (by Ellie K.) struck me as helpful on many levels. She wrote:
Progressive change happens at the margins, the intersections, not at the polar opposite ends of the spectrum. As we become more conversant in the issues, influence spreads to people in the middle. With our moment in history, we need to engage Independents and non-voters to support democracy, first by registering to vote, and then by voting for progressive candidates.
Ellie’s comment distills the essence of our path to victory and should give us hope. We do not need to persuade the unpersuadable MAGA extremists in order to win in 2022. Rather, we need to convince those “at the margins and the intersections.” America is an evenly divided electorate, so a few percentage points in either direction can make the difference between a landslide victory and a “shellacking.”
Republican strategists are telling anyone who will listen that Americans are concerned about crime and inflation. That is true, but Republicans have offered no solutions other than selling more guns to people who can’t pass a background check. Reproductive liberty, health care, the climate crisis, LGBTQ rights, and fairness in taxes are issues that also resonate with voters. As Ellie says, we must become “conversant in the issues to spread influence to people in the middle.”
We don’t have to convert everyone to our cause. Just enough of them to make a difference. We can do that. We are doing that—with a big assist from extremist Republicans who have overreached on complicated issues to assuage the extremes of their party. We are talking to the people in the middle—which is a good place to be and a sensible path to victory!
Talk to you tomorrow!