The Journal. - What Arizona's Abortion Ban Means for the 2024 Election

Episode Date: April 10, 2024

This week, the Arizona Supreme Court revived an abortion ban enacted in 1864, decades before the state's formation. WSJ's Laura Kusisto explains how the 160-year-old law could impact the 2024 election. Further Listening: -The Abortion Pill’s Uncertain Future  -Kansas’ Big Abortion Vote  -The Supreme Court Overturns Roe v. Wade  Further Reading: -Arizona Supreme Court Bans Nearly All Abortions, Reviving 160-Year-Old Law  -Why Arizona Will Be Ground Zero for the 2024 Abortion Fight  Learn more about your ad choices. Visit megaphone.fm/adchoices

Yesterday, the Arizona Supreme Court made a major ruling that bans nearly all abortions in the state. The decision revived a 160-year-old law that dates back to a time before Arizona was even a state. or Arizona was even a state. Our colleague Laura Cusisto says this ruling pushes the issue of abortion to center stage just months before a presidential election. It's a huge deal. It's a huge deal both in terms of access in the state and politically in the state.

You have a swing state, a battleground state, where this has just massively inflamed the politics around abortion now. Almost two years after the U.S. Supreme Court threw out a national right to abortion, there are still a lot of questions when it comes to abortion in America. I think we're at a moment where still abortion access is in flux for really kind of millions of people around the country. I think this issue has proven more kind of politically potent than we've expected. What will that mean for the election in November? So I think this puts abortion front and center, certainly in Arizona, but I think it also helps put it even more front and center around the country. but I think it also helps put it even more front and center around the country.

Welcome to The Journal, our show about money, business, and power. I'm Kate Leinbaugh. It's Wednesday, April 10th. Coming up on the show, Arizona's nearly total abortion ban and its implications for your next vacation. Ready to kick off? Discover exciting games and events. Plus, find amazing hidden gems in cities full of adventures, delicious food, and diverse cultures. You'll love it so much you'll want to extend your stay beyond the matches. Get the ball rolling on your soccer getaway. Head to visittheusa.com. The Arizona Supreme Court's ruling yesterday has to do with a law from 1864. Okay, so let's go back to 1864 and maybe do a little history test.

What was going on back then? Good question. Civil War? Right answer. Okay. Had the light bulb been invented yet? I do not think so. Also correct.

Was Arizona a state? Arizona was not a state. That I know. It was still a territory. Okay. Was Arizona a state? Arizona was not a state. That I know. It was still a territory. Okay, so Arizona was an estate, but there's this 1864 law. What was this law? So this law is very simple. It looks quite different than modern legislation.

It really says quite simply that if a physician performs an abortion on a woman, unless it's to save her life, he, in this case, could be subject to two to five years in prison. And our understanding is part of what these laws were meant to protect against was really the fact that abortion was quite dangerous then. And part of this was really to kind of protect patients. Even after Arizona became a state decades later, in 1912, the 1864 abortion ban stayed in place. Until 1973, when the U.S. Supreme Court legalized abortion across the country through Roe v. Wade. At that time, there was already a case in Arizona before a state court challenging the 1864 law. So what you had was you already had an ongoing case.

So Planned Parenthood and some doctors had already gone to the courts in Arizona and initiated a constitutional challenge to this law. And then Roe v. Wade is decided and the court comes back and says, OK, actually, we have to put a permanent injunction in place on this law. And then Roe v. Wade is decided, and the court comes back and says, okay, actually, we have to put a permanent injunction in place on this law. This is no longer constitutional under federal law. And so the law is functionally frozen. It cannot be enforced. So for the next 50 years after Roe v. Wade, in Arizona, the 1864 law was dormant and abortion was legal. But then, in 2022, the U.S. Supreme Court ruled again. Big reaction today to the Supreme Court's bombshell decision to overturn Roe v. Wade, leaving the abortion rights to state lawmakers. After that ruling, which gave the right to regulate

abortion back to the states, Arizona's law was up in the air. That's because it had two different laws. The 1864 law with its total abortion ban, though it had that injunction, and another law that the state legislature passed in 2022, which only banned abortions after 15 weeks. The state's Republican attorney general wanted to revert to the 1864 law. And so he goes back to the court and says, can you lift this 50-year-old injunction? What happens from there? So the trial judge at the time lifts this injunction. And so very briefly, this 1864 law goes into effect for about a week. And then very quickly, an appeals court in Arizona steps in and they put a sort of temporary stay on that, a kind of stay saying, we're not going to let this law be enforced until we have a chance

to hear this case and issue a decision. And I think it's worth mentioning what a time of profound confusion this was in Arizona. There were periods of time where nobody knew what the law was. Clinics, you know, were not providing any abortions because they didn't know if the 15-week ban or the total ban was in effect. You know, clinics were kind of having to scale up and scale down services, and it was just profoundly confusing. And it was just profoundly confusing. But then kind of once this sort of appeals court order goes into effect, we see, you know, a kind of status quo established, where for really for kind of a couple of years, clinics are able to provide abortions up until 15 weeks of pregnancy,

until, of course, we have this decision yesterday that upends things again. Tell us about the ruling yesterday in Arizona. What happened? So the Arizona Supreme Court was presented with essentially two laws. One is a law that dates back to the Civil War, and it's a law that bans all abortions except if a pregnant woman's life is in danger. And then you have a more recent law

that was passed in the spring of 2022, just before the Supreme Court overturned Roe v. Wade, and that allowed abortion through 15 weeks of pregnancy. And so the court was kind of presented with this question, does one of these laws trump the other? Does the recent law have precedence, or does the older law, the stricter law, have precedence? And the court decided that the older law, the stricter law, took precedence. The court's ruling won't take effect for a few weeks. But when it does, abortion will be outlawed, except for when the mother's life is in danger. There are no exceptions, not for rape or incest. What was the basis of their ruling?

So the basis of their ruling is that if you go and you look at really sort of the legislative record on this case, there's language in the 2022 bill, in the 15-week ban, there's language that says, we do not sort of intend for this to repeal this 1864 ban. And I should say, I've spoken with one of the legislators who wrote this bill, and she said, no, we definitely did not intend for this to supersede the total ban. We were kind of passing this 15-week ban in case that that's what the Supreme Court decided. So we kind of passed this in case that was as far as we could go. But we always wanted to go as far as we possibly could.

What will this mean for abortion access in Arizona? You know, you're going to see Arizona go from a place where functionally abortion was pretty accessible to potentially a place where almost nobody can get an abortion. Coming up, what the 1864 law means for the 2024 election. Walk with us. Connect to the land that connects us all. Grow with us. Come together and make space for each other. Eat with us.

Taste the many flavors of our cultures. Laugh with us. Smile. Joke. And bring each other joy. Come. Walk with us. Indigenous Tourism Alberta.

Whether you're practicing your morning breath work, waiting for your favorite artist to come on stage, or running errands at the perfect pace, Liquid IV Powder helps you turn ordinary water into extraordinary hydration so you can live a more extraordinary life. Live more with Liquid IV Hydration Multiplier. Available in refreshing lemon-lime, passion fruit, and strawberry flavors. Buy a stick in store at Costco, Walmart, Amazon, and other Canadian retailers. Arizona politicians immediately responded to the ruling from the state Supreme Court. Democratic Governor Katie Hobbs posted a video on social media. This archaic law, which was written by men 48 years before Arizona even became a state,

threatens the lives of countless women and strips us of control over our bodies. So Katie Hobbs has said to the legislature, you know, if you want to present a repeal of this 1864 law, you know, if you want to put that on my desk, I will sign that. And so I think she's really kind of putting the ball in their court about what they're going to do. We are taking immediate action to uphold your reproductive freedoms. And the new Democratic attorney general, Chris Mays, has pledged that she will not enforce the law. How would you describe the scale of the political fallout from this decision? I mean, tremendous. You know, this feeling that this law, which is extremely strict, that it could just kind of spring back into life sort of seemingly overnight.

When we spoke with voters, including sort of independents and some Republicans, that's sort of very distressing for them. Are there any other efforts to try to restore abortion rights? Yes, absolutely. So I think another thing that is going to really help put abortion front and center in Arizona in November is that there's very likely to be a measure on the ballot that would protect abortion through viability, essentially restoring Roe v. Wade in Arizona. And already, national groups have really targeted that as being their kind of top target for trying to get, successfully get an abortion constitutional amendment. And so I think you're going to just see tons of national money pouring into this. You're going to see this be a big, big fight.

This is a victory for pro-life advocates and for Republicans, but it has a negative political consequence, potentially. How do you explain that? Yeah, somebody asked. I was on a press call yesterday with the Alliance Defending Freedom, which is a prominent conservative legal group, and they had really pushed this case in Arizona. And they asked that question. They said, are you worried that you've won the battle, but you've lost the war? You've won this huge legal victory for you. You've won protections for unborn children all throughout pregnancy.

But this could backfire on you. This could help Democrats in the election. This could help get this referendum passed that would allow protections through viability. And he said, which is something that I commonly hear from the pro-life movement, which is that's not really for me to worry about, right? This is a human rights issue for me. This is a civil rights issue for me. I'm not thinking about political strategy on this. I'm thinking about what needs to get done. And what about Arizona's Republican politicians? How are they responding?

It puts Republicans in a really difficult position. We've seen prominent Republicans, such as Carrie Lake, who's running for Senate there, come out and say she now opposes the total ban. And I think we're going to see Republicans kind of struggling with figuring out, A, how to message this, but B, it's sort of a question for the legislature, which has this sort of bare Republican majority. Are they going to go back and repeal this 1864 law? I think they're going to see some pressure from constituents to do that. But you're also going

to see a very strong contingent of Republicans in the legislature who oppose abortion who are really not going to want to see that happen. So it just sets up a huge both statewide and national sort of political fight. How could this ruling in Arizona impact the presidential race? So I think it gives Biden and his team a lot of ammunition in terms of how they talk about abortion. We already saw the Biden campaign running a very kind of hard-hitting ad with a woman who had been denied an abortion and went into septic shock. And so I think particularly having an abortion ban actually affect in Arizona gives them the ability to tap into, if this does take effect, gives the ability to really like tap

into those real-life stories that have been really powerful. What has this meant for Trump and Republicans? Republicans have not figured out what their message is on abortion yet. And so we saw Trump on Monday really kind of try to sidestep the question of what his position is on abortion, what his position is on national abortion ban. And he said, my view is that this should just be left up to the states. The states 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.

Today, Trump said the Arizona ruling went too far and that he expects it will be, quote, straightened out. How important is Arizona to the presidential election this year? It could decide the presidential election. It was a state that voted for Biden by the narrowest margin of any state in 2020. And it is a state where presently Biden is running behind. But when I talk to my friends who cover politics here, they think that this potentially could change that. Like abortion could actually be enough potentially to swing the state for Biden, which is huge for him, really. Beyond Arizona, last week, Florida's Supreme Court made two rulings on abortion. The first cleared the way for a six-week abortion ban to take effect.

The second allowed for an abortion ballot measure in November. That could mean that voters in at least two key states, Arizona and Florida, will be directly voting on abortion access. And what's your takeaway? I always thought abortion was going to be crucial to 2024. But I think that these two decisions in Florida and Arizona have really guaranteed that. I think it's going to be very hard. I think Republicans are hoping that they can turn attention away from this issue, that they can get voters talking about

the immigration and the economy, which they will. But I think it's going to be impossible for them to ignore this at this point. We're going to see the six-week ban go into effect in Florida next month, potentially a total ban go into effect in Arizona in the coming weeks. And the just sort of seismic implications of that from a practical point of view are just gonna be really hard for them to walk away from. That's all for today, Wednesday, April 10th. The Journal is a co-production of Spotify and The Wall Street Journal. Additional reporting in this episode by Eliza Collins and Catherine Lucy.

Thanks for listening. See you tomorrow.