Arizona voters will likely be presented this November with a referendum that would deem abortion a “fundamental right” up to 24 weeks. Pro-abortion activists in as many as a dozen states (including Florida and Nevada) are aiming to get such questions on the November ballot, with the dual purpose of overruling pro-life legislation and assisting Democratic turnout among voters unenthused about Joe Biden. They are encouraged by a streak of seven straight victories for the pro-abortion side in statewide ballot questions since Dobbs. The challenge in Arizona will be especially fraught given the parlous condition of the Arizona Republican Party.
One hard lesson for pro-lifers since Dobbs has been that voters do not endorse philosophical consistency on life — even if they respect that consistency in public officials. Thus elected governors, senators, and other legislators who support strong pro-life laws have been roundly reelected, but when the policy question is submitted to direct democracy via referendum, there is no public appetite for no-exceptions anti-abortion laws. That has been especially pronounced when the pro-life side offers no public leadership and fails to engage in the give-and-take of democracy.
That’s an issue in Arizona because the state’s criminal code has banned abortion at every stage, with exception only for the life of the mother, continuously since the first Arizona criminal code was enacted by the territorial legislature in 1864. The legislature continued that prohibition in every subsequent revision of the criminal code or its abortion section in 1901, 1913, 1928, and 1977. The Arizona supreme court this week properly concluded that this is still the law of the state, and that the law was not implicitly repealed silently by a 15-week ban passed by the Republican-controlled legislature and signed by then-governor Doug Ducey in the spring of 2022. The 15-week ban aimed to survive scrutiny under the pre-Dobbs federal judiciary, not to abandon the state’s historic commitment to life.
The staunchly pro-life law dating to 1864 is philosophically and morally defensible but politically indefensible in a swing state in 2024. It will lose at the ballot box if Republicans cannot convince the state’s voters that rejecting the referendum will result in legislative compromise. At the same time, the referendum will also pass if Republicans do not defend an alternative. That may mean a compromise allowing abortion for as long as 15 weeks; it surely means exceptions for rape, incest, and at least some instances of grave physical maternal injury.
The prospects for either compromise on practical details or defense on philosophical principle have thus far been unencouraging. Republicans hold no statewide office in Arizona higher than the treasurer. Kari Lake, the likely Republican nominee for the Senate after losing a winnable race for governor in 2022, has effectively washed her hands of the state-level debate. So has Donald Trump, who seems increasingly eager to treat pro-lifers mainly as convenient scapegoats for his own political misjudgments.
In the legislature following the court decision, Republicans blocked a Democratic effort for wholesale repeal of the long-standing ban but have as yet offered no alternative of their own — and the spring legislative session is almost concluded. Arizona Republicans have been leaderless and divided in recent years, more interested in denouncing any Republican who dares win a statewide election than in formulating a clear message. That is an excellent way to cede the initiative, and ultimately power, to the other party.
Democrats have no incentive thus far to compromise. Arizona’s Democratic attorney general Kris Mayes is pledging not to enforce the law, and Governor Katie Hobbs is arguing, nonsensically, that the state is on the verge of banning contraception and in vitro fertilization. Republicans can put them back on the defensive for their extremism on abortion and make a case that the law should protect life at some stage of pregnancy — but only if they put old grievances aside and offer voters a practical alternative.