Arizona abortion law is terrible, and the justices who upheld it are profiles in courage

I admire the guts of the Arizona Supreme Court majority that on Tuesday did its job and followed the law, even when those justices knew it would spur a furious backlash against the court and them personally.

The votes of Justices John R. Lopez, Kathryn H. King, Clint Bolick and James P. Beene were as much profiles in courage as the actions of Republican officials in this state who stood against the election denialism of Donald Trump.

For interpreting the law, as is their prescribed role in our form of government, those four justices saw their decision condemned by the president of the United States, the governor of Arizona, the state attorney general and millions of people across this state and nation who today accuse them of playing politics with the law.

But what those justices did was precisely the opposite.

Justices had to know they'd face backlash

If you were a conservative on this court who hewed to the meaning of the law, you knew the political peril you were courting.

Already the left in the Democratic Party and the media are targeting two of them for removal from the bench when they appear on the ballot in the fall.

Anyone with an elementary understanding of Arizona politics knew that the decision to uphold the hard-headed and motheaten 1864 abortion law would politically hand every advantage in this state to the Democratic Party and liberals who want to remove all regulation to abortion.

Democratic politicians who called Tuesday a “dark day” also knew that Tuesday was a huge win for their party that could soon hand them the next great prize — the Arizona Legislature.

Those four conservative justices had to know all this, and yet they stood on principle and defended the limited role of the court in our form of government.

You don’t get to the Arizona Supreme Court if you do not have a record of accomplishment and an understanding of politics. Those four justices signaled in their majority decision that they understood the consequences of their decision when they wrote:

“This case involves statutory interpretation — it does not rest on the justices’ morals or public policy views regarding abortion; nor does it rest on [the 1864 law’s] constitutionality, which is not before us.” 

Supreme Court had to decide between 2 laws

To understand what happened on Tuesday, you have to pull the lens back and see this in context.

In the summer of 2022 when the U.S. Supreme Court ruled in Dobbs v. Jackson that there is no constitutional right to an abortion, it sent the question back to state legislatures to determine the legality.

In Arizona that put us in a transitionary period in which we found ourselves with two abortion laws — the 1864 law that prohibits almost all abortion and a 2022 law signed by then-Gov. Doug Ducey that prohibits abortion after 15 weeks.

That the Republicans only two years ago had put in place a law that starts to prohibit abortion after 15 weeks tells you how far Republicans have moved in the direction of reproductive rights. According to the U.S. Centers for Disease Control and Prevention, 93% of abortions occur during the first trimester — or 13 weeks of gestation.

The Great GOP Abortion Retreat: Is in full effect

The law is a concession on the part of conservatives in this state that the vast majority of abortions should be legal. Post Dobbs, conservatives ranging from establishment figures such as Doug Ducey to MAGA Republicans Donald Trump and Florida Gov. Ron DeSantis have promoted 15-week laws.

There are still Republicans who want to outlaw all abortion, but they are a vanishing minority. Even U.S. Senate candidate Kari Lake has done a 180 on her once wholehearted support for the 1864 law. She may be daft, but she can read a scoreboard.

A serious judge gives a remarkable dissent

Presented with the cold words of the law, the Arizona Supreme Court majority determined that the 2022 15-week abortion law did not create a right to abortion or repeal Arizona’s 1864 law. Thus, for the moment, the 1864 law stands.

It won’t for long.

If a Republican Legislature won’t erase it, the people of Arizona will, either through ballot initiative or a new Legislature, presumably a Democratic-controlled Legislature.

Because Tuesday’s ruling was up to interpretation, two justices with their own guiding philosophies interpreted the law differently — Vice Chief Justice Ann Scott Timmer and Chief Justice Robert M. Brutinel.

To her great credit, Timmer ended her robust dissent with a model defense of democracy and democratic institutions:

“The majority’s opinion today will undoubtedly be derided by many as result-oriented or a reflection of individual justices’ ideology. My dissenting opinion will probably spark similar criticism. That is the cross borne by all judges in controversial social-issue cases like this one. But nothing is further from the truth.

“In upholding our oaths to follow the laws of this state, we simply disagree — vehemently — about what those laws mean. And in my view, the majority mistakenly returns us to the territorial-era abortion statute last operative in 1973. I would leave it to the people and the legislature to determine Arizona’s course in the wake of Roe’s demise. With great respect for my colleagues, I dissent.” 

These are the elegant words of a serious person with a long view of the law and the court that guides it, someone who understands that what was decided in good faith by her court will not likely stand for long.

Phil Boas is an editorial columnist for The Arizona Republic. Email him at phil.boas@arizonarepublic.com. 

This article originally appeared on Arizona Republic: Arizona Supreme Court courageously upheld a terrible abortion law