April 10, 2024 11:45 AM UTC

New Abortion Ruling in Arizona Has Republicans, Trump in a Panic

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• by: Colorado Pols

The issue of abortion rights has galvanized voters across the country since the June 2022 overturning of the landmark Roe v. Wade case that had previously guaranteed abortion rights to women on a federal level. In every state that has voted on abortion rights since that ruling, voters have overwhelmingly sided in favor of abortion rights — even in red states such as Kansas and Ohio.

Voters have also punished candidates who have openly supported rolling back abortion rights, prompting many Republicans to pivot their narratives away from a national abortion ban to a more mealy-mouthed “states rights” position. This is exactly where Republican Presidential candidate Donald Trump thought he would be safest when it comes to abortion rights; despite bragging to MAGA crowds that he “personally” ended Roe v. Wade by nominating so many right-wing Supreme Court Justices, Trump sounded a much different tone on Monday. From The Washington Post:

Former president Donald Trump, who has wavered between highlighting and downplaying his role in curtailing abortion rights, suggested Monday that the politically volatile issue should be left to states, after months of mixed signals about his position.

In a video posted on social media, Trump took credit for the overturning of Roe v. Wade but was silent about a national ban of any length, which some antiabortion groups had pressed his campaign to embrace. “Now it’s up to the states to do the right thing,” Trump said.

“My view is now that we have abortion where everybody wanted it from a legal standpoint, the states will determine by vote or legislation or perhaps both, and whatever they decide must be the law of the land. In this case, the law of the state,” Trump said in the video.

We’ve seen a similar reluctance to back a national abortion ban here in Colorado; during a candidate debate for CO-04 in January, seven of the nine candidates on stage said that abortion rights should be decided on a state-by-state basis. Republican Gabe-ish Evans, who is running for Congress in CO-08, has also regularly opposed a national abortion ban and said that the issue should be “returned to the states.”

All of these Republican candidates are going to need a different set of talking points after what happened in Arizona on Tuesday. 

As NBC News reports:

The Arizona Supreme Court ruled Tuesday that a 160-year-old near-total abortion ban still on the books in the state is enforceable, a bombshell decision that adds the state to the growing lists of places where abortion care is effectively banned.

The ruling allows an 1864 law in Arizona to stand that made abortion a felony punishable by two to five years in prison for anyone who performs one or helps a woman obtain one. [Pols emphasis]

The law — which was codified in 1901, and again in 1913 — outlaws abortion from the moment of conception but includes an exception to save the woman’s life.

That Civil War-era law — enacted a half-century before Arizona even gained statehood — was never repealed and an appellate court ruled last year that it could remain on the books as long as it was “harmonized” with a 2022 law, leading to substantial confusion in Arizona regarding exactly when during a pregnancy abortion was outlawed.

The decision — which could shutter abortion clinics in the state — effectively undoes a lower court’s ruling that stated that a more recent 15-week ban from March 2022 superseded the 1864 law. [Pols emphasis]

To put this in historical perspective, this 1864 abortion law was literally written by a couple of guys who got to work soon after the state’s founding in 1863.

Truly Ridiculous Precedent

As Philip Bump writes for The Washington Post, relying on a precedent set in Arizona in 1864 is pretty silly:

Arizona sprang into existence in February 1863, just under halfway through the Civil War. President Abraham Lincoln, having signed the act that created the new territory, appointed judges to administer it. Among them was a native New Yorker, William T. Howell.

The appointed governor, John Goodwin, soon determined that the laws established at the territory’s founding (imported from New Mexico) didn’t work. He tasked Howell with writing Arizona’s first set of laws and procedures, a job Howell began with the help of a former Wisconsin governor, Coles Bashford.

In late 1864, the Howell Code, Arizona’s first set of laws, was born.

Among the other laws included in the “Howell Code” was a section creating the category of “excusable homicides” and the establishment of an “age of consent” that included 9-year-old children:

The Arizona Supreme Court decision Tuesday did not immediately revert the state law on abortion to the standard established in 1864, allowing two weeks for challenges. Should those challenges fail, though, women in Arizona could face criminal punishment for seeking an abortion, in keeping with the mores of a 19th-century society in which parents were allowed to accidentally beat their children to death and 9-year-olds were considered capable of giving consent to sexual encounters. [Pols emphasis]

And now Arizona is going to go back to this type of logic.

D’Oh!

This is obviously creating a lot of complicated questions in Arizona…and it’s scaring the hell out of Republican candidates. From The New York Times:

Kari Lake, the leading Republican candidate for Senate in Arizona, was quick to denounce the state Supreme Court’s ruling upholding an 1864 law banning nearly all abortions in the state. The law is “out of step with Arizonans,” she said in a statement. She called on state lawmakers to “come up” with a “solution that Arizonans can support.”

But Ms. Lake, an ally of former President Donald J. Trump and a 2020 election denier, had voiced enthusiastic support for the law less than two years ago, when she was in the midst of a scorched-earth campaign for the Republican nomination for governor. Asked then what she thought of the ban, she said she was thrilled it existed and called a “great law.”

Arizona voters will get a chance to vote in November on a measure enshrining abortion rights in the state constitution. You don’t need a crystal ball to understand that this measure is going to pass with overwhelming support — and probably cause mortal wounds to multiple Republican campaigns along the way.

Back to the Rhetorical Drawing Board

Trump and other Republicans clearly believed that saying abortion rights decisions “should be left to the states” was a safe middle ground that they could take in 2024 and allow them to avoid endorsing a national abortion ban. The Arizona Supreme Court absolutely shredded that narrative.

If you are someone who says that the issue of abortion rights needs to be left to the states, then by definition you are fine with the draconian ban that the Arizona State Supreme Court came up with on Tuesday. In other words, Republicans from Trump to Gabe-ish Evans have a very serious problem on their hands.

The ads write themselves: Gabe Evans is totally fine with completely banning abortion and sending abortion providers — and people who assist them — to prison for up to five years.

Good luck getting elected with that TV ad running non-stop in the fall.

As for Trump, the ad was already running:

Many right-wing and MAGA Republicans were absolutely thrilled when Roe v. Wade was overturned nearly two years ago. What may have seemed like a great idea to them in theory is now an intractable political problem with no political solution in sight.

As we’ve said before, when Republican candidates and elected officials tell you who they are and what they believe in…you should listen to them and cast your vote appropriately.