Democrats Energized, Republicans Scramble After Arizona Supreme Court Upholds 19th Century Abortion Ban

by State Brief



In an election year when abortion is widely expected to be a pivotal issue, the Arizona Supreme Court’s decision to reaffirm a 19th-century abortion ban has sent shockwaves through the political sphere, prompting members of both parties to refine their messaging.

The court’s ruling allows to stand an 1864 law, enacted a half-century before Arizona gained statehood, making abortion punishable by between two to five years in prison for any person who performs an abortion or helps a woman obtain one. The court emphasized that its decision was not political, but rather a matter of strict adherence to the law.

“A policy matter of this gravity must ultimately be resolved by our citizens through the legislature or the initiative process. Today, we decline to make this weighty policy decision because such judgments are reserved for our citizens. Instead, we merely follow our limited constitutional role and duty to interpret the law as written,” according to the court’s majority opinion.

“To date, our legislature has never affirmatively created a right to, or independently authorized, elective abortion. We defer, as we are constitutionally obligated to do, to the legislature’s judgment, which is accountable to, and thus reflects, the mutable will of our citizens,” the ruling stated.

The court said it would put the decision on hold for 14 days to allow the case to be sent back to a lower court to consider additional constitutional challenges.

In recent years, Republicans have grown more hawkish on abortion bans, forcing the issue to the U.S. Supreme Court, which has a 6-3 conservative-appointed majority after former President Donald Trump secured three nominations. The Court ruled to overturn the landmark decision in Roe v. Wade in 2022, making abortion a states-rights issue.

However, support for abortion remained durable across the U.S. despite the Court’s ruling, with voters taking to the polls to punish politicians who supported bans, and backing ballot initiatives that kept the practice legal in certain states.

Strategists warned last August that abortion would be a “tricky subject” for Republicans post-Roe, while Gallup polling showed that 61 percent of the country did not support the overturning of Roe. A month later, Mike Donilon, a senior White House adviser, said that abortion would propel President Joe Biden to re-election in 2024. Then, smelling blood in the water following Ohio voters voting “yes” on making abortion a state constitutional right, Democrats galvanized to make abortion a core issue and targeted nine states — including Arizona — for the 2024 election.

The Arizona Supreme Court decision is handing new ammunition to Democrats, while their GOP opponents race to augment their messaging to try and stave off a blowout in November.

“It is a dark day in Arizona. We are just fourteen days away from one of the most extreme abortion bans in the country,” Arizona Gov. Katie Hobbs wrote in a statement after the decision was announced. “But my message to Arizona women is this: I won’t rest, and I won’t stop fighting until we have secured the right to abortion. That is my promise to you.”

U.S. House Whip Katherine Clark (D-Mass.) framed the issue as a choice between “freedom or tyranny.” In a statement posted to X, she said, “We are at a crossroads. Either we bring freedom back to Arizona, Alabama, and every state living under an abortion bad, or Trump’s reproductive tyranny will become law in every state in the union.”

Arizona GOP firebrand Kari Lake, who is running for U.S. Senate, released a statement walking back earlier comments made ostensibly in support of the 1864 law, now calling it out-of-touch, while opposing an abortion ban at the federal level.

“I speak to more Arizonans than anyone and it is abundantly clear that the pre-statehood law is out of step with Arizonans,” she wrote in a statement posted to X.

Critics blasted Lake alleging she’s reversed course, referring to statements made during a 2022 interview where she referenced the 19th century abortion law, saying, “I’m incredibly thrilled that we are going to have a great law that’s already on the books,” specifically mentioning it by number. “I believe it’s ARS 13-3603, so it will prohibit abortion in Arizona except to save the life of a mother. And I think we’re going to be paving the way and setting course for other states to follow.”

Lake’s April 9 statement continued, “I wholeheartedly agree with President Trump — this is a very personal issue that should be determined by each individual state and her people,” she wrote, referencing a video Trump posted just a day prior softening his stance (and by virtue of his role as head of the party, the GOP’s stance) on abortion, to improve the party’s odds come November.

“I oppose today’s ruling, and I am calling on Katie Hobbs and the State Legislature to come up with an immediate common sense solution that Arizonans can support. Ultimately, Arizona voters will make the decision on the ballot come November,” Lake wrote.

Arizona Senate Republicans attempted to cool anger sweeping the state by reminding voters that “there is at least a 60-day waiting period before any change in the existing law occurs,” promising to talk with lawmakers, and ensuring they will listen to constituents to “determine the best course of action for the legislature.”

Charlie Kirk, head of the conservative activist group Turning Point USA, said eliminating abortion is “an irrefutable, necessary, moral good for society & Arizona” before warning followers and supporters about the political realities surrounding the issue and what it could mean if it costs Republicans seats in government.

“However, like all major moral fights in US history, they come with a potential political cost. It is likely that the majority of Arizonans wont like this decision. The majority of people want abortion, and they want it now,” Kirk wrote in a post on X after the state supreme court’s decision.

“Incredibly, Trump pre-empted this ruling by ONE DAY,” he continued. “The best path is likely for the AZ leg to throw this back to the voters in November. Let the will of the people decide directly on the ballot. If they want to slaughter the unborn, then they will get what they vote for.”

Sitting Arizona Sen. Mark Kelly, a Democrat, condemned the court decision and issued a call to action to his supporters. 

“Today’s decision by the Arizona Supreme Court reinstitutes a total abortion ban from the 1800s. This is the biggest step backward since the repeal of Roe v. Wade,” he wrote on X. “Make no mistake, this is happening because of Donald Trump. We must work to restore abortion rights this November.”





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