There was an odd disconnect in the mood of Arizona Democrats when a Pima County judge ruled on Friday that the state can enforce a 158-year-old territorial-era anti-abortion law.
The Democratic Party and its candidates were painting a bleak picture of death and repression.
“The Republican Party that has delivered this blow to millions of Arizonans knows exactly the kind of hell they were crafting,” said Senate Democratic Leadership in a statement. “This will kill women, break apart families, and trap so many into generational cycles of abuse and poverty. It is hateful and disgusting.”
But on social media Democrats were chirping. I wouldn’t call it gloating, but perhaps its second cousin – happy taunting.
Where are the Republicans?
Why the silence?
Where are you, Kari Lake?
This is the interlude between Roe and what's next
It’s what one side does when it knows it has won the news cycle and its opponents have been pressed into silence.
The Democrats know, as do many political observers in this state, that we’re in a strange interregnum on abortion rights, between the end of Roe v. Wade and the beginning of whatever new state laws will regulate abortion in the future.
'Lost bodily autonomy': Arizona abortion providers enraged by ruling
In liberal states, this is an easy fix. Blue state legislatures have moved to codify rights once expressed in Roe.
But in more conservative states such as Arizona, the interval will be messy for a time, because Republican political leaders who have opposed abortion rights now risk losing many of their own voters if they move in the direction of compromise – the default position on abortion in America.
We already have consensus on abortion rights
The American people by wide majorities believe abortion should be legal, but with restrictions.
The (U.K.) Economist magazine and YouGov have done tracking polls on American attitudes on abortion and have found the pie divides pretty neatly into three slices:
30% support legal abortion in all cases. No restrictions.
30% support some restrictions such as for minors or late-term abortions.
30% favor restrictions on all abortions, but for rape, incest or when the mother’s life is endangered.
Throw in the roughly 10% who say abortion should be banned in all cases and you still have a significant majority of Americans, 60-40, who say abortion should be legal.
Democrats blame an activist Supreme Court for dynamiting 50 years of precedence in Roe v. Wade. Most are unwilling to concede that the real activist court was the one that 50 years ago invented an imaginary right to legalized abortion in the Constitution.
Over the years, legal scholars left and right have written about the wobbly foundation that sustained Roe.
With its foolish ruling in 1973, the Blackmun Court had removed the issue from state legislatures where Americans would have debated the issue. Roe prematurely cemented legal abortion into law and eventually American attitudes. It was a huge advantage for Democrats, and they enjoy its fruits today with a majority of Americans supporting a Roe framework.
Arizona Democrats know this helps them
Now Arizona Democratic politicians are pressing this advantage in the 2022 state elections, knowing that legalized abortion appeals to many moderate Republicans, especially women in the suburbs, and independents.
The Pima County court did not rule that the territorial-era law supersedes all others in the state. In fact, the court is agnostic on whether the law that traces back to 1864 and the time of the Civil War is overarching.
Arizona essentially has two laws on abortion, as reported by Howard Fischer of Capitol Media Services:
The territorial-era law that makes it a crime punishable by up to 2-5 years in prison for anyone who performs or provides the means for an abortion, with no exceptions for rape or incest, only the life of the mother.
A law signed by Gov. Doug Ducey earlier this year that allows abortion through the 15th week of gestation.
There is much for the Arizona Legislature and the courts to sort out. In the meantime, the confusion presents a significant advantage to Democratic candidates for office and explains why the Republicans have gone silent.
The backstop to Roe isn't the courts. It's voters
However, even as Democratic politicians paint a bleak picture on abortion, I don’t sense their panic. I don’t smell the fear.
I don’t hear the kind of dread expressed, for instance, by Canadian truckers when they saw their government use the instruments of Big Tech and high finance to shut off access to the Canadian economy to leaders of their movement – freezing their bank accounts and chilling their speech.
That fear was palpable. Truckers angry about unending COVID-19 restrictions found themselves afraid to continue speaking after learning their government had taken a certain turn toward authoritarianism and thought control.
The Arizona Democrats chirping on social media on Friday were not afraid. They know the new ruling will help them elect Democrats in the fall. And all states will continue to elect pro-abortion rights candidates until the entire country reflects American attitudes on abortion – legal with restrictions.
Democrats know, as many Republicans do, that the ultimate backstop to Roe v. Wade is not the court.
It’s the people.
Phil Boas is an editorial columnist with The Arizona Republic. Email him at firstname.lastname@example.org.
This article originally appeared on Arizona Republic: Arizona abortion ban is a gift for Democrats, and they know it