Arizona Presents a Test of Pro-Life Realism

The Arizona supreme court has ruled that an abortion ban with an exception only for the life of the mother, which was enacted by Arizona’s territorial legislature as part of its 1864 criminal code and never explicitly repealed, remains in force.

The court’s opinion reasoned that the law (section 13-3603) was explicitly carried over into a new territorial code in 1901, adopted into the state’s first criminal law in 1913, a year after statehood, further codified in 1928 and in 1977 after Roe v. Wade, and supplemented by “dozens of abortion statutes” over the next five decades, so that it was still a law even though it went unenforced for 49 years because of an injunction premised on Roe.

The pre-Roe law was, the court reasoned, also not implicitly repealed by a subsequent 15-week abortion ban (S.B. 1164, codified as section 36-2322) that was signed into law in 2022 by former governor Doug Ducey while the Dobbs case was still pending before the Supreme Court. Planned Parenthood argued that the 15-week ban legalized abortions before 15 weeks, but the Arizona court noted that the law was enacted while section 13-3603 was still barred from enforcement by the 1973 injunction, so the language of section 36-2322 did nothing to authorize earlier abortions or repeal section 13-3603. In fact, the legislature made clear at the time that it did not intend to “repeal, by implication or otherwise, section 13-3603.” It enacted the bill against a long-standing rule in Arizona statutes that its laws “shall be interpreted and construed to acknowledge, on behalf of an unborn child at every stage of development, all rights, privileges and immunities available to other persons, citizens and residents of this state, subject only to the Constitution of the United States and decisional interpretations thereof by the United States Supreme Court,” and Ducey’s own signing statement emphasized that “in Arizona, we know that there is immeasurable value in every life — including preborn life. I believe it is each state’s responsibility to protect them.”

The court’s decision, in other words, treats democratically enacted laws as laws even when they ban abortion. The same can’t be said for Arizona’s Democratic attorney general, Kris Mayes (nominally the defendant in the case), who promptly announced that she would refuse to enforce the law.

Of course, court decisions that uphold the rule of written law are never the last word because written law can be changed by the people in elections. Arizona’s legislature can still change the law. And a referendum that is likely to make the November ballot would propose to create a “fundamental right” to abortion up to 24 weeks in the state.

This is essentially the same as the situation we saw in Michigan and Wisconsin in 2022–23: A pre-Roe law with minimal exceptions was reinstated by Dobbs, the state’s elected government was divided between a Democratic governor and a Republican legislature and did nothing, and the voters ended up adopting a broad pro-abortion proposition in a referendum in Michigan and turning over control of the Wisconsin supreme court to Democrats. Pro-lifers were leaderless and disorganized, pursued no coherent strategy, and got saddled with the worst of all worlds.

Can Arizona’s famously dysfunctional post-Ducey GOP do better? This will be a test of pro-life realism. Voters are unlikely to be at all sympathetic to just standing pat on a mid-19th-century law with no exceptions. Ideally, the legislature would make a counteroffer. Republicans narrowly control the state legislature, with a 16–14 majority in the state senate and a 31–29 majority in the state assembly. If united during a legislative session, they could pass revisions to send to Governor Katie Hobbs’s desk and dare her to veto them — which, as a creature of the pro-abortion lobby and party, she would likely feel bound to do. Those revisions could include popular exceptions for rape and incest. They might allow earlier abortions — at least up to six weeks and maybe (if unwilling to defend a six-week ban) to a later point (15 weeks is not much of a ban and would not be my preference, but it would be better than nothing). By vetoing the exceptions, Hobbs would have to make clear that she, and not pro-lifers, is the one holding an extreme and unyielding position.

Could Arizona Republicans unify around that? Unfortunately, Arizona’s legislature meets only in an annual spring session, which is scheduled to end on April 20, and it follows a calendar that likely precludes any new proposals this late in the game. So, the best the legislators could likely do is get together to sign off on a proposal to be introduced later, which Hobbs would likely ignore. But it’s better to send a message than to have no message at all. The top statewide Republican candidate, Kari Lake, isn’t likely to offer much leadership (she just issued a statement pledging to oppose any federal abortion ban or any federal abortion funding — a defensible stance for the office she is seeking but one that suggests she will try to stay out of the state-level debates).

Pre-Roe, it cost little for Republican legislators to hold onto a no-exceptions/no-negotiations stance on abortion, and it could cost a lot to compromise. But now that legislatures are permitted to make laws on the subject, more realism is called for, even if it means sometimes taking a step backwards in order to not lose the whole ball game. Perhaps some Arizona Republican legislators would secretly rather lose the referendum so they can go back to empty posturing on abortion instead of doing the hard work to pass laws and defend them. But a realistic assessment of what compromises can actually win the support of the voters will be necessary, and it could help — if it’s tried.