My first thought is that the situation Arizona’s women, their families, and caregivers have been left in by this decision by the Arizona Supreme Court (AZSC) is appalling, inhumane, and utterly unacceptable to the vast majority of Arizonans.
Therefore, this will not stand. Arizona’s voters will enshrine the right to abortion care consistent with the status quo ante in Roe in the Arizona Constitution via the AAA initiative in short order and by overwhelming margins, likely to the grave detriment of the AZGOP’s electoral prospects. The AZSC may have just ensured that Democrats will enjoy a majority in both chambers of the AZ legislature next session.
UPDATE: Re the AAA, our friend AZBlueMeanie reminds us all via an email this morning: “Just keep in mind that the same court which upheld this abortion ban will decide the certain legal challenges to the abortion initiative appearing on the ballot. The AZ Supreme Court can determine the outcome before anyone ever gets a chance to cast a vote.” Very true, Blue!
My second thought is that it is extremely unlikely the territorial-era abortion statute, ARS §13-3603 (hereinafter the ‘1864 ban’), will ever be enforced in Arizona courts. Importantly, the AZSC did NOT rule on the constitutionality of the 1864 ban, as that issue was not before this court. The AZSC instead remanded the case to the trial court for further proceedings on that matter, should the parties wish to raise it – which they surely will – and enjoined enforcement of the 1864 ban until that process is completed. There will almost certainly be further briefs, arguments, and possibly testimony, regarding the constitutionality of the 1864 ban in the trial court, and a new series of appeals subsequent to any such decision. This is not the final word on whether the 1864 ban will be found enforceable in Arizona. The Arizona political and legal news will be obsessively following these proceedings heading into the 2024 general election, and that’s good news for Democrats and for the abortion rights movement.
There are good reasons and very good arguments that parties and amici will develop as to why the 1864 ban is unconstitutional under either the Arizona Constitution, the Federal Constitution, or both. Those arguments may still prevail to some degree with an unforeseeable effect on the enforceability of the 1864 ban, and perhaps even on ARS §36-2322 (hereinafter the ’15-week ban’). These statutes’ constitutionality are both actually novel questions following the Dobbs decision by SCOTUS. By my own legal analysis of the trends in judicial fashion on these matters, the 15-week ban will almost certainly stand, but the 1864 ban is much less certain.
So that leads to my third thought, that regardless of how the legal process plays out, the politics around the 1864 ban will be very tricky for a lot of Arizona politicians to navigate – especially Republicans and especially those facing Republican primary contests. It will be a difficult needle to thread to get the nod from the Republican base and still remain viable in anything approaching a competitive district, and there could be upsets even in some that might have appeared non-competitive until this development. This is why we Democrats should ALWAYS contest every race regardless of whether we expect to win: sometimes the unexpected happens and sometimes one can expect the unexpected, and this season is one of those. More on that in the coming days and weeks, I’m sure.
One office in particular to watch very carefully in the coming weeks is the Maricopa County Attorney’s office and its current inhabitant Rachel Mitchell. I have long harbored suspicions of the veracity of CA Mitchell’s claims that she would not prosecute women for abortion-related crimes. But she reinforced her position on this matter today with her latest press release:
“Today’s Supreme Court decision is a serious one that needs to be addressed by lawmakers. It’s important for Arizonans to know that in the almost two years since the Dobbs decision, my office has not received a single request to prosecute an abortion case. I do not anticipate that today’s decision will change that. It is important to remember that under Arizona’s law, women who get an abortion cannot be prosecuted. Today’s ruling does not change that: women cannot and will not be prosecuted for receiving an abortion. My priority always has been to protect women, not prosecute them.
Likewise, I have made it clear that this office will not prosecute abortions that were the result of rape, incest, or molestation. As a career sex crimes prosecutor, I am keenly aware that the women – and girls – who get pregnant as victims of these crimes are not hypothetical situations – they are very real names and real faces to me.
Today’s ruling, rather than settling the issue, has raised issues and caused many to have legitimate and serious concerns. Even though my job is to enforce the laws, not make them, I urge the governor and legislature to take advantage of the Arizona Supreme Court’s decision to delay enforcement of the decision and come together to enact a reasonable law that takes these and other issues into account. In the meantime, we will continue to focus on the cases that always have been the priorities of this office: keeping the community safe by holding violent and repeat offenders accountable including those who would victimize women and children.”
Maricopa County Attorney Rachel Mitchell
Mitchell, of course, faces just such a primary challenge as I highlighted earlier against Gina Godbehere. Godbehere hasn’t commented on the AZSC decision as of this writing, but this could become a central issue in that primary race. If it does, that might bode well for the Democratic candidate, Wooten.
My final thought is that much of the media and Democratic responses today to the ruling are understandably very alarmed, but nothing is going to happen in terms of women or doctors being prosecuted immediately. That is not to say there will not be a deeply chilling effect on abortion access in Arizona nonetheless: the statute of limitations on felonies is generally 7 years, and a stay on enforcement is not enough to rely upon when you have the next seven years of legal jeopardy to consider when providing abortion care or support, or when seeking abortion services.
And so we discover once again the deep insight and wisdom of the ancient Chinese curse, “May you live in interesting times.”