Arizona Supreme Court sends women back to 1865

The Arizona Supreme Court has held that the state’s long-dormant 1865 near-total ban on abortion is now enforceable, despite having been superseded by a 15-week ban in 2022:

The Arizona Supreme Court upheld a 160-year-old abortion ban that could shutter abortion clinics in the state.

The ruling indicated the ban can only be “prospectively enforced” and enforcement of the law is stayed for 14 days. But it’s already causing political earthquakes.

The pre-statehood law mandates two to five years in prison for anyone aiding an abortion, except if the procedure is necessary to save the life of the mother. Enforcement would mean the end of legal abortions in Arizona. A law from the same era requiring at least a year in prison for a woman seeking an abortion was repealed in 2021.

Reproductive rights activists say it means Arizona women can expect potential health complications.

It’s unclear just how, or if, the law will be enforced. Democratic Gov. Katie Hobbs issued an executive order last year giving all power to enforce abortion laws to the state attorney general. The current attorney general, Democrat Kris Mayes, has vowed not to enforce any abortion bans. But her decision and Hobbs’ order could be challenged by one of the state’s county attorneys.

One immediate effect could be the rise in popularity of a potential ballot measure in the works for this year. Advocates say they’ve already got more than 500,000 signatures, well above the threshold of 383,923 signatures needed by an early July deadline.

Let’s hope that Hobbs and Mayes can hold the line until the initiative can pass, but this is going to be very messy and the Arizona Supreme Court is controlled by right-wing fanatics, so it won’t be easy. (The idea that overruling Roe will keep the issue of abortion out of the courts remains one of the dumbest pieces of conventional wisdom in the annals of American punditry.)

At this point, we should also remember why the Arizona Supreme Court is controlled by right-wing fanatics:

Arizona’s Supreme Court had five judges for 56 years. But on December 19, 2016, thanks to a GOP-authored bill that was opposed by every Democrat in the state Legislature, Republican Governor Doug Ducey held a ceremony in the Old Capitol building to swear in a sixth justice, and then a seventh.

In all, Ducey has appointed five of the seven justices on the state court, taking a personal interest in vetting candidates with questions designed to ferret out a fidelity to textualism and an inclination to uphold, rather than overturn or tinker with, the law. His appointments, including the addition of the two new justices, have eliminated the court’s progressive caucus and swung it from a more moderate conservative tilt to one that emphasizes libertarianism, populism, and law and order, in line with Ducey’s own views. And the ages of its younger members mean the court likely will stay that way for years.

Republican opposition to expanding the United States Supreme Court is exactly as principled as their commitment to “states’ rights.”

….Ol’ Acey Ducey wants you to know that he feels very bad about eating all the oysters:

Whoops. pic.twitter.com/FDGGNLUSA2— Matthew Gertz (@MattGertz) April 9, 2024