Arizona’s Supreme Court ruled on Tuesday that a near-total ban on abortions tied to a Civil War-era law in the state is enforceable. Under that 1864 law, anyone who performs an abortion or helps a woman obtain one can be charged with a felony. The one exception to the prohibition is if an abortion is needed to save a woman’s life.
It’s a horrifying ruling, and all the more striking because Arizona is a purple state, not a bastion of deep social conservatism. The retrograde law dates back to before Arizona had even achieved statehood, and its reactivation was made possible by the U.S. Supreme Court overturning Roe v. Wade. On Wednesday, Arizona’s Republican leadership blocked an attempt by Democratic state legislators to repeal the law.
The draconian ruling may also generate an opportunity for reproductive rights activists to decisively win abortion rights in the state.
But the draconian ruling may also generate an opportunity for reproductive rights activists to decisively win abortion rights in the state. And in the process, it could help tip the 2024 presidential election in a major way.
Abortion rights groups in Arizona said last week — before the ruling — that they had surpassed the number of signatures required to put a constitutional amendment to enshrine abortion rights on the ballot in November. The court’s ruling makes that forthcoming vote look like a lifeline to pro-choice Arizonans. “I think this changes everything,” said Arizona Attorney General Kris Mayes, a Democrat. “I think it supercharges the ballot initiative and it supercharges the elections of all pro-choice candidates.” Mayes has said that she will not prosecute abortion cases in the state.
Abortion rights ballot measures have driven strong turnout in recent contests in red and purple states. In Kansas in 2022, two years after the state voted for Donald Trump by nearly 15 percentage points, voters overwhelmingly rejected a ballot referendum removing the right to abortion from the state constitution. And in 2023, Ohio pro-abortion rights groups prevailed over Republican hijinks, as voters decisively backed adding the right to access abortion care to the state’s constitution.
Having Arizonans who favor abortion rights fired up bodes well for Biden’s odds in the battleground state, which he narrowly won in 2020 and is considered up for grabs this year. High, organized turnout for abortion rights is likely to spill over into higher turnout for Democrats, who are messaging aggressively on the issue.
Trump and his allies are obviously already nervous about this possibility. The former president told reporters that Arizona’s ruling went too far, a position that seems to contradict his stance that abortion rights should be understood as something that states determine for themselves. It also flies in the face of his previous expressions of pride at appointing the Supreme Court justices who helped overturn Roe, which triggered this 1864 law becoming enforceable again.
It would seem to suggest that Trump doesn’t hold a principled position on abortion — shocking, I know — and that instead he wants to pretend he is a moderate on the issue. This awkward contortion to maintain general election viability without alienating the religious right would be difficult for even the most disciplined candidate to maintain, let alone someone like Trump, and it’s difficult to know whose trust he’ll maintain and whose he’ll lose. Arizona Republican Senate candidate and Trump devotee Kari Lake also said she opposed the ruling. It was an expedient flip-flop for her, considering she declared the 1864 Arizona abortion law a “great law” back in 2022.
Trump has reason to be worried about a similar dynamic in other states too. Abortion rights are also on the ballot in Florida and Nevada, among other places. Trump has turned Florida into a red state, and it’s a state he should normally feel confident about. But a six-week ban on abortions takes effect in the Sunshine State in May, and in November Floridians will be able to vote on a ballot measure that will enshrine abortion access until fetal viability in the state constitution. That’s part of why Biden’s campaign thinks that it’s worth pouring resources into flipping the state. Even if Trump’s odds there remain strong, there’s a decent chance he’ll be forced to pour money into playing defense in a state he would’ve otherwise considered safe.
Arizona’s Supreme Court just handed down a barbaric ruling. But it has also helped clarify the stakes of the election, and in the long run it might help turbocharge efforts to protect abortion rights for women in the state and across the nation.
