Last Monday, Donald Trump said that abortion rights were best left to the states. “The states,” he said, “will determine by vote or legislation or perhaps both, and whatever they decide must be the law of the land. In this case, the law of the state.”
The next day, as if answering a captain’s call to fire from the line, the Republican-led Arizona Supreme Court, in an uncanny coincidence, revived a 160-year-old abortion ban, with no exceptions for either rape or incest. In a 4-to-2 decision, the court held that the 1864 ban was “enforceable” and not superseded by more recent legislation. Tasked with reconciling the state’s abortion laws, some more permissive than others, the Arizona court chose the most restrictive option available — one that ties the hands of Arizona residents with the restraints of yesteryear, forged by the settlers of a not-yet-state in the middle of the 19th century.
Beginning next week, a law once thought unenforceable will govern the lives of millions of people who had neither a say in its creation nor, for that matter, its resurrection.
A few thoughts come to mind here.
It does not escape my attention that this law owes its rebirth to an effort by Doug Ducey, then the governor, to expand the Arizona Supreme Court’s membership from five to seven justices. Ducey then stacked this enlarged court with reliable conservatives.
All four of the justices who were part of the majority in last week’s abortion ruling were appointed by Ducey. One of them, Clint Bolick, is a longtime conservative legal activist and the author of “David’s Hammer: The Case for an Activist Judiciary.” He represents a type of judge that the legal scholars Robert L. Tsai and Mary Ziegler call a “movement jurist,” defined as “someone who is socially embedded in movement-aligned networks outside of the formal legal system and is willing to use a judge’s tools of the trade in the service of a movement’s goals.” (Another Ducey-appointed justice, William G. Montgomery, once said that Planned Parenthood was “responsible for the greatest generational genocide known to man.” He recused himself from this case.)
The United States Supreme Court’s decision to overturn Roe v. Wade was not inevitable but once it was handed down, the Arizona Supreme Court was practically fated to move the state’s abortion laws in a reactionary direction. (Which makes it striking that Ducey would express dismay: The ruling, he wrote on X, was “not the outcome I would have preferred.”)
You can say the same for other political institutions in other states. Nearly everywhere Republicans hold power, they fight to rewire the institutions of government in the hope that they will then generate the desired result: more and greater Republican power.
And so we have the North Carolina Legislature gerrymandered to produce Republican majorities; the Ohio Legislature gerrymandered to produce Republican supermajorities; the Florida Legislature gerrymandered to produce Republican supermajorities, and the Florida Supreme Court overhauled to secure and uphold Republican priorities.
The states’ rights case for determining abortion access — let the people decide — falters on the fact that, in many states, the people cannot shape their legislature to their liking. Packed and split into districts designed to preserve Republican control, voters cannot actually dislodge anti-abortion Republican lawmakers. A pro-choice majority may exist, but only as a shadow: present but without substance in government.
When the demands of the living do begin to press against the will of Republican lawmakers or Republican jurists, they can respond, with the dead hand of the past. Not the past broadly constructed — one attentive to the silences of those who were missing, excluded or never recorded in the first place — but a narrow past, the main purpose of which is to extinguish new freedoms and forms of living.
Both the federal and the Arizona Supreme Courts have conjured a past that smothers the right to bodily autonomy. Anti-abortion activists are also trying to conjure a past, in the form of the long-dormant Comstock Act, that gives government the power to regulate the sexual lives of its citizens. As Moira Donegan notes in a column for The Guardian, “Comstock has come to stand in, in the right-wing imagination, for a virtuous, hierarchically ordered past that can be restored in a sexually repressive and tyrannically misogynistic future.”
This effort may well fail, but the drive to leash the country to an imagined vision of a reactionary past should be seen as a silent confession of weakness. The same is true, for that matter, of the authoritarian dreams of the former president and his allies and acolytes.
Conservatives can win, of course. They have real institutional power. But it is important to understand that they are fighting from a position of social, cultural and even political weakness. Even that great champion of conservative electoral strength, Donald Trump, has never won a popular majority.
Put a bit differently, a confident political movement does not fight to dominate; it works to persuade. It does not curate a favorable electorate or frantically burrow itself into our counter-majoritarian institutions; it competes for power on an even playing field, assured of its appeal and certain of its ability to win. It does not hide its agenda or shield its plans from public view; it believes in itself and its ideas.
In this context, Arizona is instructive. Conservatives may have gotten their desired result from the legislature and the courts. But there is still an election in November. And proponents of abortion rights say they have already collected enough signatures to put the issue on the ballot. Unlike their opponents, they are confident that the public is on their side.
