Chaos, Confusion and Republican Change-Up

Grasping the rules for getting an abortion in the American states is no easy matter for pregnant women, for abortion doctors, or for outside observers trying to understand how deeply entangled abortion is with the 2024 Presidential Election in November. The story is complicated, fast-moving, and not over yet. As Bette Davis warned her party guests, “Fasten your seatbelts; it’s going to be a bumpy night”.

Plunging into Chaos

Our starting point is June 2022, when the U.S. Supreme Court rewrote the country’s existing 50-year basic abortion law with one stroke of the judicial pen. In the case of Dobbs v. Jackson Women’s Health Organization a new conservative majority on the Court held that ending a pregnancy before fetal viability (about 24 weeks) was no longer a right protected nationwide by the federal Constitution. Instead, the legal status of abortion was assigned to each individual state to determine, and by whatever method the state chose: courts, legislatures, or popular referendum. States could return abortion to the status of a crime, as 16 states have already done, or they could make it a protected right, as it had been for the last 50 years under Roe v. Wade. They could also “split the difference” by making abortion legal for, say, six weeks into a pregnancy, or for twenty weeks – the state’s choice. “Illegal states” may also grant exemptions to the crime for pregnancies caused by rape, or in cases where the pregnancy threatened the life of the fetus or the woman. States may also decide whether pregnant minors can choose abortion for themselves or only with a parent’s consent.

Because each of the 50 states may under Dobbs pick and choose from this smorgasbord of regulatory options, it was immediately clear that the new abortion regime was likely to be confusing and chaotic. Many unanswered legal questions arose: Could a woman from an “illegal state” get an abortion in a “legal state” and return home without breaking the home state’s laws? Could a doctor or pharmacist from a legal jurisdiction send abortion pills (like mifepristone) through the mail to a patient in an “illegal jurisdiction” without risking arrest? These and other foreseeable conflicts have not yet been resolved. In the meantime, doctors, relatives, and friends of pregnant women risk all kinds of penalties – including prison – for helping them with their extraterritorial efforts to end an unwanted pregnancy. This is all hard luck – dangerous, expensive, and lonely – for unhappily pregnant women trying to organize their reproductive lives across state lines.

Abortion in the Wild West

But one doesn’t need to travel out-of-state to confront the chaos of America’s present abortion laws. It turns out that things are chaotic enough if a person simply stays in one state. Let us consider the current prize-winner of confusion, the southwestern state of Arizona, where over a century of abortion politics has resulted, for the moment, in two competing regimes. The first regime was enacted back in 1864, when Arizona was not a state but merely a territory (think of the Wild West). The legal system imposed upon it by the federal government included a near absolute ban on abortion: anyone convicted of “supplying, providing, or administering” an abortion to another would be sentenced up to five years imprisonment, unless the procedure was necessary to save the life of the woman.

Attitudes toward abortion were different in 1864 than they are now. For one thing, under the old common law, abortionists (now generally called “abortion providers”) could not be prosecuted until “quickening”, the moment at about 14 to 15 weeks when the pregnant woman could feel the fetus moving. Movement was the legal evidence of a pregnancy; without it there was nothing to abort. And movement was only evidenced when the woman said so, not when a professional (doctor, judge, or law-maker) deemed it probable; compare the authority granted to women with regard to quickening with today’s legislative pronouncements that pregnancy starts at conception. Another difference was that abortion had not yet taken on the moral character of murder as it has in current anti-abortion rhetoric and policy. As historian James Mohr makes clear, the primary legislative impetus behind early statutory abortion regulation was the physical well-being of the woman. At the time, unlicensed abortionists used all sorts of poisons and blunt instruments to perform abortions, often to the injury of their patients. Putting abortion care under the sole dominion of physicians was meant to curtail unsafe practices. It also upped the professional status of physicians, intentionally squeezing out midwives from providing women’s reproductive care. In short, early abortion statutes were anchored in a different set of personal and institutional concerns than they are today.

A True Mess

But the Arizona story continues. In 2022, the Arizona legislature passed a more modern (though still criminal) statute permitting abortion up until the 15th week of pregnancy. Confusion compounded. Which statute took priority, the total ban or the 15-week ban? And if the 1864 ban controlled, how was the exemption for saving the woman’s life to be understood? How near dead did the woman have to be in order to be saved? Doctors were reluctant to proceed in Arizona just as they had been in Ireland in 2012 in the case of Savita Halappanavar who died of sepsis while miscarrying her dying fetus, while her doctors found no grounds for an abortion. Individual cases have arisen in U.S. states, as with pregnant woman Kate Cox who was refused an abortion by her doctors in Texas and fled the state to get abortion care. And just this past week, the U.S. Supreme Court heard oral arguments on the issue as it arose statewide in Idaho.

On April 9 the Arizona Supreme Court decided the state’s two-regime problem in Planned Parenthood Arizona v. Mayes. It held that the two statutes were not contradictory (Planned Parenthood argued that of course they were) and that the 1864 ban could be enforced. However, to make sure all parties got their say, the Court postponed the Act’s revival for 14 days. (Keep in mind that with each change in the law, pregnant women are waiting to know what behavior they may legally take, and that delay is crucial in getting a timely abortion). In the meantime, two attempts by Democratic lawmakers to repeal the 1864 ban failed. A third attempt succeeded in the Arizona House on April 24 when two Republicans jumped ship and joined the Democrats, just a day after the court judgment reinstating the 1864 ban was meant to take effect but didn’t. The current repeal bill now awaits a vote in the Arizona Senate on May 1. Phew!

Order From Chaos?

But while Arizona politicians were busy changing from absolute anti-abortionists to “one soft vote on abortion saves me from defeat in November” anti-abortionists, Arizona pro-choice citizens took an off ramp off the political roundabout. Taking matters into their own hands, they collected enough citizen signatures to put an “initiative” (a form of “direct democracy” that voters themselves decide) on the November ballot, seeking to amend the Arizona constitution to include a Roe-like right to abortion. Under state law, Arizona for Abortion Access (AAA) needed 383,923 valid signatures by July 3 and it has already collected over half a million. Anti-abortion advocates now say that they may try to put a countermeasure on the November ballot, but there has been no announcement about signatures.

The significance of a successful pro-choice initiative is that it would reinstate for Arizona the same legal status for abortion that existed for the whole country under Roe vs. Wade. Abortion would be a fundamental right, so that the state would have to show it had an extraordinary (“compelling” in constitutional terms) interest before it could interrupt the right. In addition, abortions would be legal until viability (around 24-25 weeks) and not the statutory 15 weeks.

(Women) Getting Out the Vote

The AAA initiative would also have serious tactical advantages for the 2024 Presidential Election. The initiative would encourage voters both to register to vote for the initiative and, while at the polls, to vote for other Democratic “down ballot” candidates (those whose names appear below those of President and Governor). Indeed, all Arizona legislative seats are up for election in November and so the more organizers can “get out the vote”, the more likely the more numerous party will prevail. This is especially important in Arizona, a traditionally Republican state, where in the 2020 election, Joe Biden won by only 0,3% of the electorate.

There is also a gender factor at play. Many women voters remain furious with Roe’s reversal in 2022 and with former President Trump’s repeated reminders that the country owes the favor to him and his three right-wing judicial appointments (Justices Gorsuch, Kavanaugh and Barrett). Still mad as hornets, these women may make a special effort to vote for pro-choice initiatives and candidates in Arizona and beyond. There is early empirical work suggesting that women voters marshalled themselves in response to the Dobbs decision to stem the expected red tide in the 2022 congressional elections, that is, to vote Democratic when a Republican wave had been expected. How will Arizona vote in November? No one can be sure, but holding Trump responsible for overturning Roe seems like a good case for frontier justice (the non-violent kind) to me.

Reading the Reproductive Room

But what about true-blue “Make America Great Again” Republican legislators and voters who felt supported, not betrayed, by former President Trump’s various outbursts? How does one explain their change in views? Take for example Arizona Republican state senators or U.S. senatorial candidate Kari Lake, all of whom favored the 1864 total ban until they didn’t? Perhaps the recent Alabama Supreme Court decision that artificially conceived frozen embryos are   “children” did the trick. Only then did prospective Alabama parents grasp that disposing of an unused embryo during an IVF cycle could be murder under state law. And too, there is something very crazy-making in former President Trump’s recent description of Arizona’s 1864 near total ban as going “too far” when “too far” – that is, overruling Roe – was his central 2016 campaign pledge. Finally, to the extent that women are beginning to speak more openly about their own abortion experiences, the paralyzing fear that has kept abortion an “open secret” in the American states is softening. A month ago, Democratic state senator Eva Burch publicly announced that she was pregnant, had just received a diagnosis of a nonviable fetus, and had scheduled an abortion. She stated: “[F]ar-right extremists […] are in leadership positions, but that’s not an accurate representation of the entire Republican caucus in Arizona. And I do not think at all that it’s an accurate representation of all of the Republican voters. […] We can really see that people are ready for this [conversation].”

In its own way, Arizona has turned the Dobbs decision on its head. In his decision, Justice Alito proclaimed that “[i]t is time to […] return the issue of abortion to the people’s elected representatives.” So far those elected representatives have been both divided and noncompliant. And while there may be a repeal of the total ban – possibly on May 1 – the Fall initiative still awaits voters. Let’s give Arizona a summer breather and see what November, in light of Trump’s bragging and women’s confidence, brings at last.