The reaction echoed the response to an Alabama Supreme Court decision over in vitro fertilization just two months before.
The election-year ruling by the Arizona Supreme Court allowing enforcement of a law from 1864 banning nearly all abortions startled Republican politicians, some of whom quickly turned to social media to denounce it.
The court decision was yet another development forcing many Republicans legislators and candidates to thread the needle: Maintain support among anti-abortion voters while not damaging their electoral prospects this fall. This shifting power dynamic between state judges and state lawmakers has turned into a high-stakes political gamble, at times causing daunting problems, on a range of reproductive health issues, for Republican candidates up and down the ballot.
“When the U.S. Supreme Court said give it back to the states, OK, well now the microscope is on the states,” said Jennifer Piatt, co-director of the Center for Public Health Law and Policy at Arizona State University’s Sandra Day O’Connor College of Law. “We saw this in Alabama with the IVF decision,” she said, “and now we’re seeing it in Arizona.”
Multiple Republicans have criticized the Arizona high court’s decision on the 1864 law, which allows abortion only to save a pregnant woman’s life. “This decision cannot stand. I categorically reject rolling back the clock to a time when slavery was still legal and where we could lock up women and doctors because of an abortion,” state Rep. Matt Gress said in a video April 9. All four Arizona Supreme Court justices who said the long-dormant Arizona abortion ban could be enforced were appointed by former Gov. Doug Ducey, a Republican who in 2016 expanded the number of state Supreme Court justices from five to seven and cemented the bench’s conservative majority.
Yet in a post the day of the ruling on the social platform X, Ducey said the decision “is not the outcome I would have preferred.”
The irony is that the decision came after years of efforts by Arizona Republicans “to lock in a conservative majority on the court at the same time that the state’s politics were shifting more towards the middle,” said Douglas Keith, senior counsel at the left-leaning Brennan Center for Justice.
All the while, anti-abortion groups have been pressuring Republicans to clearly define where they stand.
“Whether running for office at the state or federal level, Arizona Republicans cannot adopt the losing ostrich strategy of burying their heads in the sand on the issue of abortion and allowing Democrats to define them,” Kelsey Pritchard, a spokesperson for Susan B. Anthony Pro-Life America, said in an emailed statement. “To win, Republicans must be clear on the pro-life protections they support, express compassion for women and unborn children, and contrast their position with the Democrat agenda.”
Two months before the Arizona decision, the Alabama Supreme Court said frozen embryos from in vitro fertilization can be considered children under state law. The decision prompted clinics across the state to halt fertility treatments and caused a nationwide uproar over reproductive health rights. With Republicans feeling the heat, Alabama lawmakers scrambled to pass a law to shield IVF providers from prosecution and civil lawsuits “for the damage to or death of an embryo” during treatment.
But when it comes to courts, Arizona lawmakers are doubling down: state Supreme Court justices are appointed by the governor but generally face voters every six years in retention elections. That could soon change. A constitutional amendment referred by the Arizona Legislature that could appear on the November ballot would eliminate those regular elections—triggering them only under limited circumstances—and allow the justices to serve as long as they exhibit “good behavior.” Effectively it would grant justices lifetime appointments until age 70, when they must retire.
Even with the backlash against the Arizona court’s abortion decision, Keith said, “I suspect there aren’t Republicans in the state right now who are lamenting all these changes to entrench a conservative majority on the Supreme Court.”
Meanwhile, abortion rights groups are trying to get a voter-led state constitutional amendment on the ballot that would protect abortion access until fetal viability and allow abortions afterward to protect the life or health of the pregnant person.
State court decisions are causing headaches even at the very top of the Republican ticket. In an announcement in which he declined to endorse a national abortion ban, presumptive Republican presidential nominee Donald Trump on April 8 said he was “proudly the person responsible” for ending Roe v. Wade, which recognized a federal constitutional right to abortion before being overturned by the U.S. Supreme Court in 2022, and said the issue should be left to states. “The states will determine by vote or legislation, or perhaps both, and whatever they decide must be the law of the land,” he said. But just two days later he sought to distance himself from the Arizona decision. Trump also praised the Alabama Legislature for enacting the law aiming to preserve access to fertility treatments. “The Republican Party should always be on the side of the miracle of life,” he said.
Recent court decisions on reproductive health issues in Alabama, Arizona, and Florida will hardly be the last. The Iowa Supreme Court, which underwent a conservative overhaul in recent years, on April 11, heard arguments on the state’s near-total abortion ban. Republican Gov. Kim Reynolds signed it into law in 2023 but it has been blocked in court.
In Florida, there was disappointment all around after dueling state Supreme Court decisions this month that simultaneously paved the way for a near-total abortion ban and also allowed a ballot measure that would enshrine abortion rights in the state constitution to proceed.
The Florida high court’s decisions were “simply unacceptable when five of the current seven sitting justices on the court were appointed by Republican Governor Ron DeSantis,” Andrew Shirvell, executive director of the anti-abortion group Florida Voice for the Unborn, said in a statement. “Clearly, grassroots pro-life advocates have been misled by elements within the ‘pro-life, pro-family establishment’ because Florida’s highest court has now revealed itself to be a paper tiger when it comes to standing-up to the murderous abortion industry.”
Tension between state judicial systems and conservative legislators seems destined to continue, given judges’ growing power over reproductive health access, Piatt said, with people on both sides of the political aisle asking: “Is this a court that is potentially going to give me politically what I’m looking for?”
Reprinted with permission from Daily Kos.
Rick Santorum’s Family Provocation
WASHINGTON — Lost in the hubbub over Herman Cain’s love affair with the number nine during last week’s Republican debate were some compelling observations by Rick Santorum about “the breakdown of the American family” and its relationship to poverty. His comments deserved more attention than a wacky tax plan or Newt Gingrich’s proposal to jail two Democratic foes.
“You want to look at the poverty rate among families that have … a husband and wife working in them?” Santorum asked. “It’s 5 percent today. A family that’s headed by one person? It’s 30 percent today. We need to do something.”
Noting that “the word ‘home’ in Greek is the basis of the word ‘economy,'” the former Pennsylvania senator argued for “a policy that supports families, that encourages marriage, that has fathers take responsibility for their children.” He added: “You can’t have a wealthy society if the family breaks down.”
Santorum is broadly right. According to Columbia University’s National Center for Children in Poverty, 5 percent of married family households were poor at some point in the last 12 months, compared with 28.8 percent of single-parent households. Something important is going on.
Interestingly, one politician who agrees with Santorum is named Barack Obama. “We know that children who grow up without a father are more likely to live in poverty,” the president said at a Father’s Day event last year. “They’re more likely to drop out of school. They’re more likely to wind up in prison. They’re more likely to abuse drugs and alcohol. … They’re more likely to become teenage parents themselves.” Growing up without a father, he added, “leaves a hole in a child’s life that no government can fill.”
Before we ask what is to be done, what we shouldn’t do is blame gays and lesbians for disrupting the heterosexual family. We straight people have done a fine job of this all by ourselves.
Santorum takes a somewhat different view. He has argued that if same-sex marriage becomes the norm, “marriage then becomes, to some degree, meaningless.” This I don’t understand. Neither my marriage nor Santorum’s is rendered “meaningless” because a gay or lesbian couple decides to make a lifelong commitment.
On the contrary. Jonathan Rauch, a friend and one of the ablest champions of gay marriage, has argued that the demand for gay marriage could be seen as a conservative turn within the gay community, involving as it did a “communitarian and family-minded” emphasis on “civic responsibilities.”
Beyond the gay marriage battle, we need a bargain: Liberals should acknowledge, as Obama has, that strengthening the family is vital to economic justice. Conservatives should acknowledge that economic justice is vital to strengthening families.
For example: Our national policies on sick leave and family leave are among the most anti-family in the developed world. When faced with a choice between the needs of the family and the needs of employers, we nearly always tilt toward employers. Western European nations, influenced by both pro-family Christian Democrats and pro-labor Social Democrats, have done far more to make work compatible with family life.
Conservatives often say that tax policies should be more helpful to families raising children. I agree. But this can’t be yet another excuse for cutting taxes on the wealthy. New tax benefits for families with kids have to be concentrated on those in the middle and the bottom of the income structure, where modest amounts additional relief could go a long way.
The impact of the single-parent family on the well-being of children has sometimes been an explosive matter because it is often discussed in relation to the African-American community. Obama himself has made this explicit link. And young black men do face a crisis. Rather than avoid the issue (a temptation for liberals) or pretend that public policy can do little about it (a temptation for conservatives), we need to make their plight a high national priority. Scholars such as Harry Holzer and Peter Edelman have suggested a variety of work and education policies that could improve the economic situation of young men who are poor. This, in turn, could enhance the chances of family formation, which has been deteriorating among poorer whites as well.
It does not demean the heroic work of dedicated single mothers to say that two-parent families have a better shot at prosperity. So I’m glad Santorum brought up the issue. But let’s focus on practical ways to make the family stronger. Using pro-family slogans to divide us against each other won’t do much for any sort of family.
E.J. Dionne’s email address is ejdionne(at)washpost.com.
(c) 2011, Washington Post Writers Group