How Arizona Got Its Old-Fashioned Abortion Ban: Old-Fashioned Court Packing!

No need to win elections if you can load the courts with your guys.

Then-Arizona Gov. Doug Ducey in 2016. Photo by Gage Skidmore, Creative Commons License 2.0

Yesterday’s decision by the Arizona state supreme court to reinstate an 1864 ban on abortion has a lot of people scratching their heads and wondering how the hell that happened. After all, the statute was passed back when Arizona was only a territory and the freaking Civil War was still underway, and decades before statehood (1912) or the right of women to vote (1920).

And thank goodness for the 19th Amendment, because Arizona Attorney General Kris Mayes (D) has pledged not to enforce the rotten old law. The Arizona Republic also points out that Gov. Katie Hobbs (Also D), seeing this madness coming, issued an executive order giving the AG’s office sole authority to enforce abortion laws, although some ambitious county attorney hankering to send doctors to prison may sue to overturn it.

And in another win for the 19th Amendment, backers of an initiative to amend Arizona’s constitution to protect abortion rights say they already have enough signatures to get it on the November ballot, and will keep collecting signatures until the July 3 deadline for submission. Seems like there might now be even more interest in that amendment, huh?

But how did Arizona even end up with an abortion ban crafted when its territorial legislature had spittoons in every room so gentlemen wouldn’t stain the floor, at least not with their chaw? (Or, if you prefer, when Susan B. Anthony and Elizabeth Cady Stanton were still busy working for the abolition of slavery, saving up women’s suffrage for after the war.)

Instead of picking apart the “logic” of the Arizona Supremes’ decision, let’s look at the real reason: All seven of the justices were appointed by Republican governors, and back in 2016, the GOP-dominated state Lege expanded the court from five to seven members.

Yes, that means that even if pissed-off Arizona voters choose not to retain the two justices up for election this fall, it will take years of voting to change the composition of the state supreme court, where justices serve six-year terms before voters have a chance to keep or toss them out.

In a prescient 2020 article, Politico explained how Arizona packed its supreme court with rightwing ideologues, although then-Gov. Doug Ducey insisted that heavens no, it wasn’t court-packing. After all, he pointed out, he can’t just appoint anyone he wants, because Arizona has a “merit selection system” for judges, and it

requires applicants to be screened by an independent judicial nominating commission made up of lawyers and members of the public who are nominated by the governor and confirmed by the state Senate. Each time a court vacancy occurs, the commission must send the governor candidates representing different political parties.

Of course, nothing in that process precluded Ducey from appointing the most right-leaning nominees on the list, and as Politico notes, he went out of his way to vet the potential candidates “with questions designed to ferret out a fidelity to textualism and an inclination to uphold, rather than overturn or tinker with, the law.”

And hey, if the commission didn’t pick someone Ducey really wanted, he could always replace some of its members, which is exactly what he did after the Lege expanded the court from five to seven members. One of his preferred judges, Bill Montgomery, a rightwing prosecutor and “longtime ally of former Maricopa County Sheriff Joe Arpaio,” was vociferously opposed by the state ACLU and other good-government types when he applied to be a Supreme in 2019, and the commission rejected his application. So Ducey “simply replaced the three commissioners who had voted against Montgomery. Soon enough, his name made it to the governor’s desk, and he was seated on the court.”

Hilariously, some of the Republicans pushing to expand the court had claimed it would allow for “greater diversity” among the members of the court. At least, maybe someday when all five of Ducey’s appointees and the two left over from Jan Brewer are gone.

When Ducey was finished, the Arizona Supremes, a “body that had four conservatives and one liberal when Ducey took office[,] now consisted of seven conservatives and zero liberals.”

That October 2020 Politico piece, published well before Donald Trump’s loss in Arizona turned sent the state’s MAGA chuds into full fascism, anticipated the court’s action yesterday:

As demographic trends shift Arizona from a red state to purple, potentially even toward Democratic control, that won’t be reflected in its highest court. Thanks to the Republican-led expansion, the conservative makeup of Arizona’s Supreme Court likely will stay in place for more than a decade.

To be sure, it turned out that the shift happened even faster, in part due to voters’ 2022 rejection of the GOP slate of insane election deniers. It’s entirely possible that backlash to the abortion decision will tip Arizona even further into something resembling sanity this year; there’s serious anticipation that Democrats might win control of the Legislature for the first time in decades, and passage of the abortion rights initiative looks likely too.

And if Arizona had been one of those swing states Donald Trump hoped to pick up, we’re fairly sure the state supreme court tipped the scales toward Biden yesterday, too — never mind the weird New York Times claim that the ladies will all forget by November. Silly ladies!

The question for the long term is how long the outrage at being forced back to the 1860s will last, and whether successive retention elections will be able to whittle away those Ducey appointees sooner, or later.

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Arizona Supreme Court Upholds Abortion Ban From Before Women Were Allowed To Vote

New York Times Couldn't Possibly Guess How Voters Will React To Arizona Abortion Ruling, It's A Mystery!

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[Politico / Bolts / Arizona Republic / Photo: Gage Skidmore, Creative Commons License 2.0]

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