The day Arizona turned blue?

Arizona’s abortion ban is a mess of Republicans’ own making.

The Arizona Supreme Court yesterday declared that Republican lawmakers and former Gov. Doug Ducey unequivocally upheld a territorial-era law criminalizing abortion when they approved a 15-week abortion ban in 2022 — and Arizona Republicans are shocked and appalled.

With the Arizona Supreme Court decision on abortion yesterday, Republicans finally caught the car they’ve spent years chasing. And now they’re terrified. As they should be. 

April 9 may well be remembered as the day Arizona turned from purple to blue.

Our art intern, ChatGPT, had a really hard time with the concept of Republican lawmakers catching a car, so it drew this angry mob instead.

While the ruling is a political nightmare for Republicans, it was the only legally sound conclusion the justices could really draw, the majority opinion states. It’s the totally foreseeable and logical result of the very straightforward law that they passed in 2022, coupled with the Dobbs decision later that year: Performing an abortion is a crime in Arizona.

The 1864 law, which was approved before women had the right to vote, subjects anyone aiding in abortion to a two to five-year prison sentence, except if it's necessary to save the mother’s life — but not if the abortion is the result of rape or incest. 

Now, Republican politicians are backpedaling as fast as they can. Nearly every Republican in a competitive seat has denounced the court ruling, including those who voted for the 2022 law. 

Kari Lake, who called the 1864 ban a “great law” just two years ago, was outraged to see it implemented yesterday, calling on the actual governor and lawmakers to do something to stop that great law from being enforced. Ducey, who signed the law, declared that this is “not the outcome I would have preferred” and likewise called on Hobbs to undo it (and save Republicans from a likely bloodbath in November).

Despite what they’re saying now, Ducey and Republican lawmakers could not have been more clear about the intent of the law they passed. It included an “intent clause” specifically stating that keeping the pre-statehood ban on abortions was their intent. 

In 2022, the Court of Appeals came up with some tortured logic claiming the two laws could be “harmonized” in a post-Roe world. But the Supreme Court justices, in a 4-2 decision¹, declared there was no ambiguity in what lawmakers wanted when they passed the law on party lines. 

“This (intent clause) can reasonably bear only one meaning: the legislature did not intend the act to codify an independent statutory right to an elective abortion before fifteen weeks’ gestation or otherwise repeal any other abortion laws more restrictive than S.B. 1164.…” justices in the majority wrote. “This is the only interpretation that is internally consistent with, and does not defeat, the remainder of S.B. 1164’s construction provision. And it helps that the legislature identified precisely which statute it meant to preserve: § 13-3603.”

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SO IT’S OFFICIAL?

Well, not quite… 

The timing and fate of the abortion ban’s implementation depends on more legal maneuvering yet to come. But it’s looking imminent.

The Supreme Court delayed enforcement of the ban for 14 calendar days from Tuesday, but a different lawsuit with former Arizona Attorney General Mark Brnovich tacked on an extra 45 days to the law’s start date.

So it’s not entirely clear when the law will go into effect, but the earliest abortion could be illegal in Arizona is about 60 days from now, per the Arizona Republic. Planned Parenthood says it expects to be able to provide abortions through May.

There’s also a possibility that lawmakers repeal the 1864 law or send a new abortion law to the ballot for voters to decide. 

Already, Republicans in competitive seats, including Rep. Matt Gress and Sen. TJ Shope, are promising to overturn the territorial law. Even Sen. Shawnna Bolick, a pro-life warrior whose husband, Supreme Court Justice Clint Bolick, just upheld the territorial law, now says she wants to go back to 15 weeks. 

But a handful of Republicans in competitive elections don’t run the Legislature. In order to undo what they’ve done, the Republicans expressing regrets would have to convince GOP leadership to allow a measure to be heard — or be willing to overthrow their leaders to get it done. Neither option seems likely.

But we wouldn’t be surprised if the governor called a special session just to make a point: Republicans did this and now they can’t undo it.

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WILL THE LAW BE ENFORCED?

Maybe not…

Arizona Attorney General Kris Mayes said her office intends to keep fighting. That could be by appealing the state Supreme Court’s ruling to the U.S. Supreme Court, which overturned federal abortion protections in June 2022, or by taking “the constitutional questions that remain back down to the Superior Court,” Mayes said at a news conference Tuesday. Arizona Law breaks down the legal complications in this Twitter thread.

Mayes said she’ll do everything she can to keep the lower court’s stay in place. But even if she loses further court battles, the attorney general said she won’t enforce the law. 

“As long as I am Attorney General of the State of Arizona, no woman or doctor will be prosecuted under this draconian law … not by me, nor by any county attorney serving in our state,” she said at a news conference after the ruling.

Gov. Katie Hobbs issued an executive order last year that gave the authority to enforce abortion laws to the state attorney general. Meanwhile, Maricopa County Attorney Rachel Mitchell said she won’t prosecute women who have an abortion, though the law actually puts the penalty on doctors, not the patient. 

Gress posted a video calling on GOP leaders to “make the 15-week statute the law of the land.” (He sponsored a bill last year to add fetal personhood into state law). But even if that idea gained traction among more Republicans, it’s not clear they would have Democratic support. 

“Am I willing to compromise the lives of pregnant people after 15 weeks to have the appearance of being diplomatic? Absolutely not,” Democratic Sen. Eva Burch said.

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WHAT’S THE POLITICAL FALLOUT?

It’s very good for Democrats on the November ballot.

A big part of the reason Democrats don’t want to revert to a less-bad 15-week ban is that they feel the wind at their back, both in terms of the upcoming reproductive rights initiative to enshrine the right to an abortion in the state Constitution, and for their party at large. 

The group pushing the initiative already has half a million signatures, surpassing what they need to get on the ballot when signatures are due in July. 

Democrats are banking on that initiative to drive more people to the polls in November, and they juiced the abortion ruling as a campaign message at Tuesday’s press conference. Yolanda Bejarano, chairwoman of the Arizona Democratic Party said the abortion ban is “all because MAGA Republicans are following Trump’s lead.” 

And the vote-the-bums-out attitude may extend far beyond lawmakers, as Democratic organizers are already turning their eyes to two Ducey appointees to the state Supreme Court who supported instating the 1864 law and are up for retention election this year. 

Meanwhile, Twitter has become a bonfire fueled by contradictory statements from Republicans who praised the end of Roe v. Wade protections and are now outraged to see the effect, including U.S. Reps. Juan Ciscomani and David Schweikert. The Arizona Democratic Legislative Campaign Committee dedicated a Twitter thread to it, offering a preview of their messaging for the next six months. 

1. Justice Bill Montgomery recused himself, or it almost certainly would have been a 5-2 decision.