In the first twenty months after the U.S. Supreme Court reversed Roe v. Wade, eliminating any federal constitutional right to choose abortion, 16 states made abortion functionally illegal (either via total bans or bans after six weeks of pregnancy, when women often do not know they are pregnant). In the last week that number rose to 18, as state courts in Florida and now Arizona have given effect to draconian abortion bans. The big difference is that Florida’s 6-week ban was first enacted (and then put on hold by the courts) in April of 2023. Arizona’s total ban with criminal penalties for doctors performing abortions first appeared in 1864, when Arizona was still a territory, and long before women had the right to vote. In a 4-2 decision, the Arizona Supreme Court swept aside a 15-week ban adopted by the state legislature just before Roe v. Wade was reversed, and deemed the older total ban still effective. There are still a couple of procedural steps in the way before abortion becomes a criminal act in Arizona, but within 45 days all access to abortion could shut down except for the rare case when it’s necessary to save the life of a pregnant woman.
This intensely reactionary development was cheered by the Alliance Defending Freedom, the conservative Christian legal advocacy group that played an important role in the litigation that led up to the U.S. Supreme Court reversal of Roe, as the New York Times reported: “We celebrate the Arizona Supreme Court’s decision that allows the state’s pro-life law to again protect the lives of countless, innocent, unborn children.”
It’s clear that in paving the way for state control of abortion policy, the Arizona law is precisely what ADF had in mind. But the reimposition of this barbaric law is alarming the Republican pols who worked hand-in-glove with ADF to abolish abortion rights. 2024 Arizona U.S. Senate candidate and Trump buddy Kari Lake, who during her unsuccessful 2022 gubernatorial campaign called the 1864 law “great” and a potential model for other states, is now calling for it to be overturned and replaced with the 15-week ban the court just killed.
Lake had better get her ducks in a row given the angry backlash about to break out in her state. And the entire Arizona Republican ticket from Donald Trump on down could be placed in a tricky position once Arizonans get the chance to vote on a state constitutional amendment restoring Roe-era abortion rights that will likely appear on the November ballot (supporters of this initiative say they’ve already met the signature requirements for a November vote, but will continue to collect signatures up until a July 3 deadline). Similar initiatives are already on the ballot in Florida, Maryland and New York, states that could be joined by Arkansas, Colorado, Missouri, Montana, Nebraska, Nevada and South Dakota before November. Arkansas, Missouri and South Dakota are among the total-ban states which, like Arizona and Florida, could throw off the bans at the ballot box. And Democrats in all these states are likely to link their get-out-the-vote efforts to those of pro-choice initiative backers.
There’s no question Arizona has now become ground zero for the political battle over abortion rights this year. It’s a presidential battleground state that Joe Biden carried very narrowly in 2020, and Lake’s contest against Democrat Ruben Gallego for the seat now occupied by Kyrsten Sinema (who is retiring) could have a big impact on control of the Senate. For now, though, the laws controlling reproductive rights in Arizona were crafted by the best legal minds of the Civil War era, and a 160-year-old reign of terror over women has resumed.
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