Arizona Republicans Block Abortion Ban Fix
They can't help themselves.
So, yesterday, the news was full of stories like this one from Axios (“Republicans rush to distance from ‘”‘disaster’ Arizona abortion ruling“):
Republican lawmakers and candidates for Congress are scrambling to create distance between themselves and an Arizona Supreme Court ruling on Tuesday upholding a near-total ban on abortion in the state.
[…]
Driving the news: The Arizona court, which is composed entirely of Republican-appointed justices, ruled 4-2 that an 1864 law making it a felony to perform an abortion supersedes the 15-week ban state legislators passed in 2022.
- The 19th-century law provides exceptions only to save the life of the mother.
What they’re saying: Rep. Juan Ciscomani (R-Ariz.), who represents a seat President Biden won in 2020, called the ruling a “disaster for women and providers” in a statement posted to social media.
- Ciscomani said the 15-week ban “protected the rights of women and new life,” but the territorial law is “archaic.”
- Rep. David Schweikert (R-Ariz.), another Biden-district Republican, said the issue “should be decided by Arizonans, not legislated from the bench,” urging the state legislature to “address this issue immediately.”
- Kelly Cooper, a Republican running to challenge Rep. Greg Stanton (D-Ariz.), called for the state legislature to “begin work immediately on reinstating” the 15-week ban.
Zoom out: It’s not just Arizonans weighing in to voice disagreement. Rep. Nancy Mace (R-S.C.) said she was “appalled” by the “Draconian” ruling, telling Axios: “Hard pass.”
- “This is an awful ruling,” said Biden-district Rep. Marc Molinaro (R-N.Y.). “I care about the difficult choice women have to make, said I would reject a national abortion ban, and kept my word.”
Zoom in: Rep. Richard Hudson (R-N.C.), the chair of the National Republican Congressional Committee, told Axios he’s “counseled our members … [to] explain to your constituents what your abortion position is.”
- He added: “Democrats are spending a lot of energy and money lying about our positions, and I think in that case if you disagree with any ruling, you ought to be vocal about it.”
- A GOP strategist working on House races told Axios, “Republicans have been crystal clear where they stand, and they must continue to articulate their commonsense position.”
For those who hadn’t been paying attention, the Dobbs decision meant that the states were suddenly back in control of abortion policy for the first time in half a century and several states, including Arizona, had some very old laws on the books. (Although, in Arizona’s case, the 1864 law was actually reiterated in a 1973 law just after Roe‘s passage.) Arizona quickly passed a new law in the aftermath of Dobbs, but the Arizona Supremes ruled that, for highly technical reasons of statutory interpretation, the new law didn’t supersede the old one.
To the extent that the old law was a problem and Arizona Republicans wanted to replace a near-total ban with a ban after 15 weeks, the solution was quite simple: pass yet another law clarifying that contravening laws were hereby repealed. Easy. Peasy.
So, I wake up this morning to this from the NYT (“Arizona Republicans Thwart Attempts to Repeal 1864 Abortion Ban“):
A decision by Arizona’s highest court upholding an 1864 ban on nearly all abortions created chaos and confusion across the state on Wednesday. As abortion providers were flooded with phone calls from frantic patients, Republican lawmakers at the State Capitol blocked efforts to undo the ban, prompting angry jeers from Democrats.
Democrats, who seized on the decision to resurrect the 160-year-old ban as a pivotal election issue, tried to push bills through the Republican-controlled Legislature to repeal the ban, a move they said would protect women’s health and freedom, and also force Republicans to take a formal vote on the law.
But Republican leaders in the Senate removed one bill from the day’s agenda on Wednesday, legislative aides said. In the House, a Republican lawmaker who had called for striking down the law made a motion to vote on a Democratic repeal bill that has sat stalled for months. But Republican leaders quickly scuttled that effort by calling for a recess, and later adjourned until next Wednesday.
Democrats on the Senate floor yelled “Shame!” and “Save women’s lives!” as their Republican colleagues filed out of the chamber.
“I don’t see why we wouldn’t move forward,” said State Senator Anna Hernandez, Democrat of Phoenix. “Are they serious about this or are they not?” she said of the Republicans. “Are they just backpedaling when they realize they’re on the losing side of a policy battle?”
Despite the pressure from Democrats and some Republicans to undo the law, it was uncertain whether Republican leaders, who narrowly control both chambers of the Legislature, would allow any immediate action on proposals to repeal the ban.
Representative Teresa Martinez, a Republican and abortion opponent, criticized Democrats for trying to force a vote a day after the court’s ruling. She called their chants and shouts extremist and insurrectionist behavior.
“We do not want to repeal the pre-Roe law without first having a conversation about it,” she said in a floor speech. “There is no reason to rush on this very important topic. We must listen to all viewpoints thoroughly. We cannot do that when our colleagues are acting in the way they did this morning.”
The Senate president and House speaker, both Republicans, issued a joint statement emphasizing that the court’s ruling had not yet taken effect and probably would not for weeks, as the legal fight over the 1864 law heads back to a lower court for additional arguments over its constitutionality.
Sigh.
While the 15-week ban is controversial, it’s in line with policy throughout the developed world. Only 4% of abortions in this country (and 4.8% in Arizona) come after that point in the pregnancy. Indeed, 93.1% nationally (and 91.2% in Arizona) come by the 13th week. Essentially no one supports a complete ban, let alone one with draconian punishments for women. Yet these idiots can’t get out of their own way.
James: “Essentially no one supports a complete ban, let alone one with draconian punishments for women. Yet these idiots can’t get out of their own way.”
The Right does, pure and simple.
I think the message of the last few years is that the Ultra Right Wing God-Botherers do want a complete ban, they want doctors who perform abortions and women who try to get abortions to be charged and imprisoned for murder, and they want to prevent women from crossing state lines to secure abortions in other states. (How that last one would work if women have access to cars, I’m not sure.) The latest attack is aimed at contraceptive drugs and devices.
The real crazies are crawling out from under their rocks and showing themselves in the open. And Republicans who for years have coasted on “I’m pro-life, yes-sirree Bob, you betcha!” will be expected to leap over ever higher hurdles to actually prove it to the crazies.
Karma is a b*tch, guys.
And most of those fall into the medically needed/catastrophic birth defect category.
Just another reminder that legislating the parameters of a health care situation is stupid.
Odd how Arizona Republicans – and their forebears – seem to think that pregnancy is akin to spontaneous combustion: it just happens WITHOUT men. Otherwise, why is there no reference, much less any consequence, to the impregnator? (Once again, the notion that America was founded by people yearning to be free from religious nuts telling them how to live is debunked. Seems the goal was to BE the religious nuts telling everyone else how to live.)
“the Arizona Supremes ruled that, for highly technical reasons of statutory interpretation, the new law didn’t supersede the old one.”
In this case, the “highly technical reasons of statutory interpretation” boil down to “we don’t want to and we’ll come up with any legal-sounding crap to get our way.”
It’s called the Alito method.
James: “While the 15-week ban is controversial, it’s in line with policy throughout the developed world.”
James, this has been dealt with in many forums.
@wr: I only had time to skim the opinion but it didn’t seem absurd. It’s not even final, as they sent it back down to the lower courts. It just seems that there was a patchwork of laws, many of which were predicated on Roe, and the 2022 law wasn’t explicit enough that tit was repealing the older ones. ¯\_(ツ)_/¯
I estimate it’s roughly 27%.
@Barry:
Its important to remember that the foundation of Republican/ Trumpist ideology is that the world should be a hierarchical place of privilege.
In their view, there is no such thing as a law which applies to all people equally, and no such thing as rights enjoyed universally, but merely a patchwork of privileges of power and influence.
So their wives and mistresses will always have access to abortion, or pornography, or whatever else they happen to ban for the lesser people.
@James Joyner: if one reads it, it is indeed a legal technical by clumsy drafting of the 2022 law – which is structurally displeasing the political partisan and of course subject to usual partisan just so story explanations.
By the political timing and by result this is hardly something that anyone other than an anti-abortion hardline ideologue would desire, and rather it is clearly in the realm of the frustrating legal technical.
Which should rather cheer the Democrats, as the panderers in the Republican party who never expected that mere posturing would get translated into a real world challenge. This, Florida – and a strategy to bait Trump into blithering on with increasingly incoherent positions are most helpful politically for November, that seems most evident.
Given Trump poor self-control, his ego, the baiting opportunity to provoke him seems one that is likely to be profitable.
“She called their chants and shouts extremist and insurrectionist behavior.”
This just feels like gaslighting in re: January 6th (or trying to both-sides January 6th into not being that big of a deal).
Shouting “shame” and whatnot is not extremist and it is by no means insurrectionist.
Breaking into the US Capitol and assaulting law enforcement in the hopes of disrupting the constitutional transfer of executive power, however, very much is.
There is, btw, something fundamentally absurd that a law passed while Arizona was a territory with fewer than 10,000 inhabitants could dictate key health care decisions in the now.
I say that understanding how it all works and that the legislature should and can fix it.
The problem is that Republicans lie all the time about what exactly their position is on abortion. First it was, “we just want it to go back to the states”. Then people got involved and stated passing voter lead referendums and that back fired. So they started talking about a national ban. And not only that, they tried (and are still trying) to pass laws to make it so people could not go to other states like you could before roe.
A national ban was a pretty hot topic until Trump took a piss allover it with the idea of making it a 15 week ban because he is not really a true believer and even he can see that they are on the wrong side of the issue. However, if they were to win the election all of the moderation on abortion is out the window and they are back to passing abortion laws that will get people killed. You can take that to the bank.
Abortion bans do absolute nothing other then give a happy face to fundies and make medically necessary decisions involve a judge, who isn’t qualified to make the call, the norm. It’s not science it’s not morality, it’s just stupid.
With all due respect to the OP, if this is the case, and I have no reason to believe it isn’t, then the “problem” of late term abortions is pretty much solved no legislation needed. Doctors do not perform late term abortion unless they are medically necessary. Their one indications prevent it and they could lose their license.
If abortion is really, really murder then a 15 week ban is murder, a 12 week ban is murder, and frankly anything other than this draconian law excavated in AZ is murder. So let the decision be between a Dr. and patient and the rules covering ethical behavior for Doctors will be a all the checks you really need. And frankly the only sane policy. Making policy by what some people imagine is in the bible is insanity.
@Rick DeMent:
So are exceptions for rape and incest. I want to see Trump (or any of the politicians) be asked if a child conceived by rape or incest has a less of a right to live and exist than any other child.
@Rick DeMent: Right. My longstanding position was that Roe was made-up Constitutional law but that Webster (the viability standard minus an arbitrary trimester framework) was good public policy. 15 weeks is a long time that allows for essentially all elective abortions and there should obviously be exceptions for medically-necessary later-term abortions.
Ummmm, Teresa? We’ve been having these discussions for years. Decades even. Maybe you should take your fingers out of your ears and your head out of your a**.
Trump says states should be allowed to throw doctors in prison for reproductive health care
Free Kermit Gosnell.
@James Joyner:
With all due respect we have seen how states hostile to abortion handle these “exceptions”. The idea that a judge is involved who has no medical training is a feature to these people, not a bug. I would never want the life of my wife or daughters to be subject to the maceral nature of a uber right wing judge.
Further more, you are still accepting the framing that a fetus is a human being with rights under the constitution. This has been asserted of course but it’s plainly nonsense. It not science it’s not even good philosophy, it’s religion nothing more and we should not be passing laws that do nothing for the greater society other then to placate the Fee Fess of religious people who believe in all kinds of nonsense.
Abortions laws are not required. There is no problem with patient and there Dr. making the decision. There is no harm on the wider community at all. Also, all constitutional law is “made up”, I find that observation trite and useless. You admitted it yourself all this is all over 5% of all abortions preformed after 15-16 weeks. It not a problem for politicians to solve. No one in the wider community is harmed by abortion. A non self aware and non-sentient fetus is not harmed any more then a brain dead human who is taken off life support.
This new compromise that seeks to stake out a 15 week national ban is nothing more then Roe with a shorter term for abortion on demand and calling that a significant change from what SCOTUS just overturned is sophistry and gives lie to the slogan “abortion is murder”.
@Steven L. Taylor: “There is, btw, something fundamentally absurd that a law passed while Arizona was a territory with fewer than 10,000 inhabitants could dictate key health care decisions in the now.”
Seriously? Next you’ll be saying that the age of consent should be raised above ten years old and minorities should be allowed to testify against whites.
@Steven L. Taylor: Arizona as a territory is geographically different from the state we now know as Arizona. So does that mean Nevada is now required to enforce the old law in the area it has that was formerly Arizona in the 1860s?
@wr: Madness!! what’s next? Giving women the right to vote?
You can see where that got us.
This perfectly encapsulates a common Republican political dilemma.
On the one hand, they know what they have to do in terms of clarifying the law, because allowing a total ban on abortion is political suicide in a general election.
On the other hand, they want to do that in a way that is as cost-free as possible politically, and caving to Democratic pressure to vote for bills the Democrats openly support at the height of media attention and focus would also be political suicide but from the other direction – the GoP base.
So what they will probably do is add a fix to some other legislation once the media furor has died down.
Not exactly a profile of courage.
I dont believe the 2022 bill was an accident. They went out of their way to note that “This act does not…repeal, by implication or otherwise, section 13-3603, Arizona Revised Statutes, or any other applicable state law regulating or restricting abortion.” Section 13-3603 being the 1860 territorial law. Maybe you can claim it was an accident if they just didnt address prior laws, but they did and in particular the total ban from 1860.
Steve
@Charley in Cleveland:
That was certainly true of many of my ancestors. Mayflower, Winthrop Fleet, Puritans, Seventh-Day Baptists, Catholics in Maryland, protestants from Northern Ireland …
I want to make sure I’m understanding this correctly:
1.) Dobbs verdict comes down and, maybe, the old law is law again
2.) AZGOP passes new law, assumes it supercedes old law
3.) Someone (who?) brings suit and court decides actually, old law supercedes new law and old law becomes law
4.) Some AZGOPers don’t want old law and speak out against it, discuss repeal
5.) AZDems don’t want old law and bring legislation to repeal it
6.) AZGOP leadership stops AZDem legislation in its tracks, walks away
Is that right???
@Neil Hudelson: Gallup currently has “Abortion should be illegal in all circumstances” at 13%, a relatively low level of support based on recent history.
https://news.gallup.com/poll/1576/abortion.aspx
@steve: THIS is the reason that “the Arizona Supremes ruled that, for highly technical reasons of statutory interpretation, the new law didn’t supersede the old one.” is a bit off.
They explicitly specifically said that they were not replacing or superseding the 1860s law.
@Kazzy:
Your point #2 not quite – the new law contained language that it did not supercede previous law. Perhaps the court could have found some trick around that, but the decision was plausible and not on its face goofy like e.g., Dobbs.
@Kazzy:
Thanks for the data! That’s refreshing it’s that low. My number was a bit tongue in cheek. It’s the so called Crazification Factor
The “Arizona” territory at the time the law was passed included Vegas, contained under 7000 people, wasn’t a state, didn’t let women vote, and the southern half of the territory [ most of today’s state ] allowed slavery.
What’s the next Republican nationwide goal? Prima nocta?
@Neil Hudelson:
Ha! I looked at that RationalWiki entry just yesterday.