Most Arizonans want abortion to be legal—and this November, they’ll get the chance to vote to enshrine this right in the state Constitution. The anti-abortion movement is panicking.
The Arizona Supreme Court resurrected its zombie pre-statehood criminal abortion ban earlier this month, which is slated to go into effect as early as June. In doing so, the Arizona court effectively nullified the state’s 2022 15-week gestational limit ban, claiming it did not “actually create a right to abortion, and therefore did not supersede or modify the territorial law.”
Cloaking the result in arcane rules of statutory construction, the court’s true guiding compass appears to have been Arizona’s fetal personhood statute which confers upon “the unborn child … all rights, privileges and immunities available to other persons.”
A majority of registered voters in Arizona believe abortion should be legal, according to recent polls. The resurrection of this zombie law, which took many by surprise, has sent Republican lawmakers and anti-abortion activists in the state into a strategic tailspin as they seek to stymie widespread outrage over the decision and voters’ potential to transform Arizona into a state that prioritizes reproductive freedom during the November elections.
Republican Scramble for Senate Seats
The U.S. Senate seat left vacant by Kyrsten Sinema (I-Ariz.) presents a crucial race, which Republicans believe may be their best chance to flip the Senate. The race is almost certain to be between Democratic hopeful Ruben Gallego and far-right Republican nominee Kari Lake. When Lake was running for governor of Arizona in 2022, TIME magazine characterized her as the “new face of the MAGA right,” and more recently, she told supporters we “are going to put on the armor of God [and] maybe strap on a Glock on the side of us, just in case.”
During her 2022 post-Dobbs run for governor, in response to the state attorney general’s plan to enforce the state’s pre-statehood law, Lake said she was “incredibly thrilled we are going to have a great law that is already on the books” and that Arizona would accordingly “be paving the way and setting course for other states to follow.”
Now, Lake is walking back her fierce anti-abortion rhetoric in the wake of the outcry over the Arizona court ruling, which she recently lamented as “out of line” with where Arizonans are today and requiring redress through repeal of the 1864 law.
Lake’s walk-back is clearly calculated to attract voters. As Phil Boas, an editorial columnist for the Arizona Republic, warned: If “pro-life purists in the Republican Party insist on holding fast to the 1864 law, the party will … lose the Arizona House and Senate. They will almost certainly hand the next U.S. Senate seat to Ruben Gallego.”
The vast majority of Republican Arizona lawmakers have not fallen in step with Lake’s flip-flop, and many are resisting Lake’s direct calls ‘to offer her support in any effort to repeal the law,” as reported in The New York Times. Two attempts to advance a repeal bill failed in the state legislature, and a parallel effort to shut down a vote to advance a repeal bill failed in the Senate, when only two Republican senators crossed party lines to join the Democrats in voting to allow the introduction of a repeal bill.
Some political pundits have attributed the failure of Republican lawmakers to get behind the repeal effort to the outsize influence of Kathi Herrod, head of the Center for Arizona Policy—the “political powerhouse for social conservatives.” According to Chuck Coughlin, founder and president of a well-established Arizona political consulting firm, Herrod is the “’voice in Republican primary politics. …You don’t cross Cathi Herrod … or you lose.’”
Herrod has called upon “state legislators who told voters in 2022 that they opposed abortion … to stand by their convictions and refuse to repeal the pre-Roe law now that it has been upheld.” She insists that “Arizonans who voted for candidates with strong pro-life convictions deserve loyalty, and unborn babies and their mothers especially deserve the promised protections.”
This call may “inject some steel into the spine of Republicans who may be weakening in their resolve to live in the 19th century,” wrote Laurie Roberts in the Arizona Republic, but many others may ultimately opt to follow Lake’s about-face in an effort to save their seats.
The choice of which path to follow is intensified by the fact that the proposed Abortion Access Act (AAA) to enshrine a fundamental right to abortion in the state Constitution will almost certainly be on the ballot in this pro-choice-leaning state. And while the outcome cannot be predicted with certainty, voter attitudes about Arizona’s return to the pre-statehood era makes the chance of victory far more likely.
The Republican Dilemma on Abortion
So, do Republicans follow Lake’s lead in an effort to thwart this result and avoid handing the election to Democrats? Or do they honor the integrity of their commitment to pro-life constituents, thus avoiding, in the words of Herrod, “political posturing [and] back peddling” which fuels “voter cynicism at the cost of human life”?
A leaked strategy memo from Linely Wilson, general counsel at the Arizona House of Representatives, further illustrated what’s at stake for Republicans; It revealed a carefully calculated plan to defeat the “radical ballot initiative” by sowing confusion through placing competing measures on the ballot.
One proposed option would constitutionalize so-called “reasonable protections,” including that only state-licensed physicians would be allowed to perform abortions and prohibiting so-called “discriminatory abortions.” Aimed at disguising the fact that its true purpose is “to protect and preserve life and to protect the health and safety of women,” proposed titles include the Arizona Abortion and Reproductive Care Act and the Arizona Abortion Protection Act.
Intended to show that “Republicans have a plan,” the final slide declares, “Boom. Easy as that.”
The Arizona Supreme Court’s punishing commitment to an arcane 19th-century law aimed at controlling women’s bodies at a time when they lacked fundamental rights in both the private and public spheres, has presented anti-abortion Republicans in Arizona with a narrow choice between “pro-life” purity or political pragmatism. Hopefully it will galvanize voters to recognize what really is at stake—namely, the ability of individuals to make their own reproductive decisions.
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