Surprise Arizona ruling sets abortion politics aflame

April 9, 2024

The Arizona Supreme Court’s ruling doused gasoline on the already-flickering fire of abortion politics Tuesday and threatened to upend the 2024 contests in the state by upholding a Civil War-era law that made performing an abortion a felony, putting Republicans on the back foot in the process.

The ruling, which makes abortion punishable by two to five years in prison for anyone who performs or helps someone obtain one, was the latest bombshell that will supercharge the fight over abortion rights, this time in a major presidential battleground state with a Senate race also on the ballot in November.

The news sent shock waves throughout Washington, with Democrats of all stripes wasting no time reacting. President Biden laid into the ruling, saying it was “a result of the extreme agenda of Republican elected officials who are committed to ripping away women’s freedom.”

“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,” Biden said, calling it a “cruel ban.” 

The White House also quickly announced Vice President Harris would head to the Grand Canyon State at the end of the week in response to the court ruling, which overturned the 15-week ban the state enacted in 2022 in response to the Dobbs ruling.

Sen. Mark Kelly (D-Ariz.) briefed Senate Democrats during their weekly luncheon moments after the ruling was handed down, and he appeared alongside Democratic leaders at their press conference to decry the decision, noting that the 1864 law came into existence 48 years before Arizona became a state.

“This law may have been written 160 years ago, but it’s only being reinstated now because of politicians who worked to overturn Roe v. Wade,” Kelly said, adding that the court’s decision on Tuesday referenced the Dobbs decision 22 times. “This is devastating for women in Arizona.” 

The arcane law, which also includes an extremely narrow exception for “when it is necessary” to save a pregnant person’s life, will go into effect in 14 days unless the Legislature moves to repeal it. Arizona Gov. Katie Hobbs (D) called for the 1864 ban to be repealed.

The ruling also is expected to have an outsized political impact, as Arizona voters likely will consider a ballot measure in November to reinstate abortion rights. Groups involved with the effort said in the past week they have exceeded 500,000 signatures, 120,000 more than the requisite number needed to put it on the ballot. The Tuesday decision is expected to further boost that total, with the deadline to hand in those signatures set for early July. 

It could also follow the trend of recent elections, fueling Democratic turnout in a presidential contest that was razor-thin four years ago and help the party in the contested Senate race, which is one of the top ones on the map this cycle.

While Democrats loudly cried foul at the ruling, they were hopeful that it would give them a shot in the arm in a state that is crucial to their electoral hopes in November. 

“It just goes to show what happens when you put extremists in charge. People who want to take away women’s reproductive freedom — people should understand they mean what they say,” said Sen. Chris Van Hollen (D-Md.), who ran the Senate Democratic campaign arm in 2018. 

“I think we’ll see the same thing [as in 2022],” he continued, pointing to the surge of voters who went to the polls in response to the Dobbs decision. “Politically, it will be a huge hit to Republicans.” 

The GOP also seemed to realize the ruling could be a problem. Republican Kari Lake, who is running against Rep. Ruben Gallego (D-Ariz.) to replace Sen. Kyrsten Sinema (I-Ariz.) in the upper chamber, said she opposes the court’s decision and called on Hobbs and the GOP-held Legislature “to come up with an immediate common sense solution that Arizonans can support.” 

“Ultimately, Arizona voters will make the decision on the ballot come November,” Lake added in a statement.

The news also seemed to catch Republicans in Washington flat-footed. Senate GOP members largely declined to comment on the ruling, saying they hadn’t heard or read enough about it or that it is a state issue. The National Republican Senatorial Committee referred The Hill to Lake’s statement.

It also came a day after former President Trump declined to take a stance on a federal abortion ban and argued that the matter should be left to the states. He added he is proud to have ended Roe via the appointment of three conservative U.S. Supreme Court justices.

Nevertheless, party operatives in the state are worried the decision and the expected ballot measure will lead to a landslide that could not only hurt Trump and Lake, but also throw both chambers of the state Legislature up for grabs. 

“It’s not good for Republicans at the ballot box, period,” one Arizona-based GOP operative told The Hill, adding that it’s “impossible” for the party to defend the 1864 law, especially in swing districts in the battleground state. 

It remains in question how the state’s leaders will handle the topic in the coming weeks. Hobbs last year handed Arizona Attorney General Kris Mayes (D) the power to enforce abortion laws, and Mayes has said she will not enforce any bans on the procedure, though those decisions could be challenged legally.

The seven members of the Arizona high court were all appointed by Republicans, including five by former Gov. Doug Ducey (R-Ariz.), who signed the 15-week ban into law two years ago. 

The decision is also set to put the GOP in a difficult spot come November as it attempts to deal with abortion literally being on the ballot once again.

Since the Dobbs decision, voters in Michigan, California and Vermont cemented abortion rights in their state constitutions during the 2022 midterm elections. Ohio voters also passed an amendment enshrining abortion rights in November, and up to eight states could consider doing so later this year. 

Florida, Maryland and New York all have items on the ballot aimed at abortion rights, while Colorado, Missouri, Montana and Nevada — in addition to Arizona — all could as well.

Brett Samuels contributed.