Arizona Supreme Court's Abortion Ruling Shows Conservatives For What They Truly Are

Overturning Roe set reproductive rights back 50 years. Arizona’s ruling sets it back 160.
A person walks past the Arizona Supreme Court building, Wednesday, April 10, 2024, in Phoenix. The Arizona Supreme Court ruled Tuesday that the state can enforce its long-dormant law criminalizing all abortions except when a mother's life is at stake.
A person walks past the Arizona Supreme Court building, Wednesday, April 10, 2024, in Phoenix. The Arizona Supreme Court ruled Tuesday that the state can enforce its long-dormant law criminalizing all abortions except when a mother's life is at stake.
via Associated Press

Republicans have long crowed that they are the party of freedom, individual liberty and small-government conservatism.

Arizona’s abortion ruling shows that they’re anything but.

Arizona — one of the most important states on the political map — could soon have one of the most restrictive abortion bans in the country, based on a law that was passed before Arizona was a state, all because those same small-government conservatives decided to use government to tell women what they’re permitted to do with their bodies.

The Arizona Supreme Court ruled on Tuesday in favor of an 1864 law banning abortion in all cases, at any stage of pregnancy, except when it’s necessary to save the mother’s life. No exceptions for cases of rape or incest.

It would supersede the 15-week abortion ban passed by the state legislature and signed into law in March 2022.

The law would go into effect 45 days after the state Supreme Court issues a formal ruling, but the state’s attorney general said she won’t enforce it.

The ruling, a 4-2 decision, came just a day after Donald Trump stumbled through a feeble attempt to define his own abortion policy: He said he supported leaving the issue up to the states, while in the same announcement, took credit for the Supreme Court overturning Roe v. Wade, wiping out a 50-year-precedent for legal abortion nationwide.

“We defer, as we are constitutionally obligated to do, to the legislature’s judgment, which is accountable to, and thus reflects, the mutable will of our citizens,” Arizona Justice John Lopez wrote. (All the justices were appointed by a Republican governor.)

But the court decided that the state’s 15-week ban was no longer valid because it was “predicated entirely on the existence of a federal constitutional right to an abortion” — under Roe — that would later be overturned.
In other words, Arizona’s lawmakers used Roe as a template for the state’s 15-week ban. As the Arizona justices saw it, overturning Roe that June effectively overturned the state ban passed three months earlier.

Instead, the Arizona court decided to go with a law written 160 years ago. Well, of course! Everyone knows folks today think exactly the way people did in 1864!


Since Roe’s repeal, 12 other states have tried to ban nearly all abortions. Other states are considering it.

A states’ rights advocate might argue that different communities will see an issue differently. “The choices folks in San Francisco might make may differ quite a bit from folks in a rural county in Kansas,” as one tweet argued. “Neither group of people would be wrong.”

That misses the point. The underlying message in that tweet is that neither group’s choice is wrong. Yet, we would deny a person’s ability to choose for themself — not because the choice itself is wrong, but because their choice of where to live was wrong.

We talk about being a divided nation, and that people have radically different views on volatile issues. That doesn’t mean people of radically differing views don’t live in the same communities. San Francisco, you might find hard to believe, has plenty of conservative-minded residents, and vice-verse in rural Kansas. Thus, millions of people living where abortion bans are in effect are being denied a choice that the tweet says is not inherently wrong. Meanwhile, there’s no law in San Francisco requiring people to get abortions.

Do the justices on the Arizona Supreme Court fail to see this? I don’t know. But their ruling not only denies individual freedom for people who live in predominantly blue counties like Maricopa, Pima and Coconino (home to Phoenix, Tucson and Flagstaff, respectively); they’re denying it to pro-choice residents living in predominantly red counties. That is an inequitable application of the law.

In fairness, justices aren’t supposed to be swayed by anything other than the law. Theoretically, they are legally landlocked. The Code of Conduct for United States Judges is clear: The duties of the judicial office take precedence over all other activities, including personal, political or religious views. They “should perform those duties with respect for others, and should not engage in behavior that is harassing, abusive, prejudiced, or biased.”

Does anybody see that in this Arizona ruling?

What I see in their decision is a tyranny of the minority.

That’s not meant to be hyperbolic or even to impugn motive. Someone went digging for a 19th-century law to justify their own selfish agenda irrespective of fellow citizens with differing views who (in this case) just want to be left alone.

These are nothing more than zombie laws. Dead and buried in the morals of a different time, they’re being resurrected and contorted with pretzel logic by litigants and ultimately justices, who interpret them as if they were written today rather than “as written” ages ago. So please don’t tell me this is a matter of law, or, for that matter, originalism. That’s just a bunch of smoke-filled coffeehouse crap. This is about people imposing their will on others.

“Imposing” is too nice a word. “Forcing,” is better. That’s what totalitarian states do.

I get it: This is our system. The law grinds exceedingly slowly, but it grinds exceedingly fine. Correctives are available. State lawmakers could rewrite the law, post-Dobbs, or add a new amendment to the state constitution (which has been done 160 times since 1912, when Arizona became a state). Or Arizona voters could decide — and just might.

Abortion rights advocates say they’ve gathered enough signatures to put a measure on the November ballot that would enshrine in the state’s constitution a right to an abortion until fetal viability, roughly 22-24 weeks.

But the process isn’t the point. We can fault the Arizona justices, but the real blame lies with the litigants and their supporters. They piously insist that theirs is the only way and who went through all the labyrinthian legal steps to get a ruling that forces “their way” down everyone’s throat.

I wouldn’t dream of telling those litigants, or any pro-life individual, that they go out and get an abortion. Could you imagine passing a law requiring it? But they have no problem denying a pro-choice person’s choice through legal writ.

Look, if you want to operate a network of crisis centers to counsel people against having abortions, as one of the litigants does, knock yourself out. Advertise. Make your case there, in the free market. Anybody choosing to walk in will then know what they’re getting into. Maybe they want the counseling, maybe they’re just curious. Maybe they’ll get an abortion, maybe they won’t. It’s their decision.

True, the results of our political process — elections, laws, policies, judicial rulings — can’t possibly make everyone happy. It’s impossible in a country as diverse as ours. But abortion is a different matter, emotionally painful and deeply private. All rights are bracketed. The right to punch someone in the face ends where the other person’s jaw begins. But abortion impinges upon no one else’s freedoms. No one can insist with any credibility that an abortion one county over is impacting your life on your side of the state line. So stay out of it.

Conservatives complain about liberals being the morality police. Yet they insist on imposing their morals on others whose lives they know nothing about. Conservatives say they’re champions of smaller government, until they don’t like your lifestyle, your morals, your culture or your faith. Then the knives come out.

These people will stop at nothing to get what they want no matter who it hurts. Their selfish pursuits are in direct contradiction to the ideals of the great American experiment, whose spirit calls upon the nation to serve the greatest number of us while disadvantaging the least number, to welcome all comers of all faiths, all cultures, and all beliefs, to enjoy the individual freedoms of America’s promise. But not according to the anti-abortion crusaders.

Don’t think this can’t happen nationally. Project 2025 is a plan by conservative organizations to reshape the executive branch in ways many of us would find appalling. One of their proposals could virtually end abortions nationwide by dipping into another 19th-century law, just as litigants did in Arizona: the Comstock Act. This 1873 law barred the mailing of anything deemed obscene, including anything “intended for producing abortion.”

The issue wasn’t fetal life, in that case, but sexual purity. The idea was to outlaw contraceptives and medical tools for performing abortions to prevent people from indulging in shamelessly sexual bacchanals.

Project 2025 would direct the Justice Department to use Comstock as a tool to outlaw abortion and the mailing of anything used to induce it: medical instruments, supplies, and, yes, abortion pills like mifepristone, which now account for more than half of all abortions in the U.S. During last month’s oral arguments before the United States Supreme Court to ban two drugs used in medication abortions, guess who cited Comstock indicating support for a ban: Samuel Alito and Clarence Thomas, two notorious originalists. (Erin Hawley, the attorney arguing for restricting the pills, cited it as well.)

Funny how they cared little for originalism back in February when reviewing the Colorado Supreme Court’s decision to disqualify Trump from the ballot under the 14th Amendment, Section 3. Trump argued that this would “disenfranchise tens of millions of Americans” and “unleash chaos and bedlam.” Good enough for Alito, but in his majority opinion overturning Dobbs, he asserted, “We cannot allow our decisions to be affected by extraneous influences.” You mean like overturning a 50-year-old precedent that disenfranchised tens of millions of Americans?

An originalist would agree that Section 3 of the 14th Amendment must be interpreted in light of “the understandings of those who ratified it.” Justice Thomas agreed. That’s what he wrote for the majority in a 2022 case, N.Y.S. Rifle & Pistol Ass’n, Inc. v. Bruen.

When the 14th Amendment was ratified, the “understanding” was that it prohibited insurrectionists like Jefferson Davis and fellow Confederate adherents from ever holding a federal office, including the presidency, or “any office civil or military under the United States, or under any State.”

I don’t know about the justices of Arizona’s high court, but here we have U.S. Supreme Court justices steeped in originalism only when it’s convenient while ignoring their originalist convictions when it doesn’t fit their personal biases. Partisanship, not originalism, is the primary doctrine of this court. And like the litigants in the Arizona case, they don’t give a damn about disenfranchising tens of millions of Americans, relying on laws that are obsolete. They’re only still on the books because no one has ever bothered to repeal them.

Perhaps someone will dig up other “zombie” laws on the state’s books, especially those enacted before Arizona was a state, that the Arizona Supreme Court decides must be followed, as well. For instance:

Maricopa County prohibits more than six girls from living in any house, probably passed in the 19th Century over concerns about brothels. The county is also home to Arizona State University and its 28 sororities.

Another Arizona law from the 19th century: It was illegal for women in Tucson to wear pants.

In the Phoenix suburb of Avondale, fortune-telling and palm-reading are illegal. So is hypnotism, unless performed by a physician or dentist.

And once upon a time in Nogales, wearing suspenders would get you fined: up to $500 for women and up to $1,000 for men.

Hopefully, voters in Arizona and Florida (with its recently enacted six-week abortion ban) will follow in the footsteps of every other state that has voted to keep abortion legal and shove it up the keister of the selfishly self-righteous.

CORRECTION: A previous version of this piece said the law would go into effect in 14 days.

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