When the Supreme Court overturned the federal right to abortion almost two years ago, the conservative justices used the phrase “democratic process” almost a dozen times between them to describe what would come next, suggesting that the court was merely handing decision-making powers back to the voters. After a string of victories for legalized abortion in elections across the country, Republicans are turning to a “democratic process,” all right — but it’s the one that took place in the 19th century.
In early April, Arizona’s conservative Supreme Court ruled that a total ban on abortion from 1864, fittingly shepherded by a legislator who “married” a series of pubescent children, could be enforced. The court had been asked to decide whether a 15-week ban legislators had passed in the spring of 2022, before Dobbs, actually replaced the zombie law — which would at least allow women to get abortions in the first 15 weeks of pregnancy. The majority ruled that it didn’t.
The high-level Republican panic that followed is a testament to how illegal abortion has upended politics. Donald Trump, who once took credit for Roe’s death and recently claimed to support the right of each state to set its abortion laws, soon posted on Truth Social that “the Supreme Court in Arizona went too far on their Abortion Ruling, enacting and approving an inappropriate Law from 1864,” and calling for lawmakers to use “HEART, COMMON SENSE, and ACT IMMEDIATELY, to remedy what has happened.” Meanwhile, Arizona U.S. Senate candidate Kari Lake, who was for the 19th-century law before she was against it, frantically worked the phones to get state lawmakers to repeal it. (They’ve twice refused, most recently on Wednesday.) Lake also posted a video on X in which she claimed that a “total ban” was “out of line” with the way Arizonans feel about abortion, and that she herself viewed abortion as a “personal and private issue” — sounding rather like a pro-choice candidate.
To longtime (and principled) abortion opponent David French, all this was a betrayal, along with Republican attempts to neutralize an Alabama court’s decision that effectively banned the use of IVF treatment. “Pro-life” beliefs, he lamented in a New York Times column, were being “abandoned the instant the commitment to unborn children might endanger the larger MAGA political project.” Worse, Trump was “taking the most pro-choice position of any Republican presidential nominee in two generations, and all the largest pro-life groups continue to bend the knee.”
Give French credit for being clear-eyed: He understands that many Americans oppose his views, and he’s happy to be a political martyr to the cause, conceding that “we simply don’t know who we are — or what we truly believe — until our values carry a cost.” But it’s less that Trump and Lake have changed their views and more about a calculated muddle to get them as far as the next election, after which they have many other, stealthier options to further restrict abortion.
In a recent rambling video, Trump claimed he doesn’t support a federal abortion ban, although he notably didn’t say he would veto one. But the same conservative activists who are defending the 1864 Arizona law, led by the movement law firm Alliance Defending Freedom, just argued to the Supreme Court that that a different 19th-century law, the 1873 Comstock Act barring distributing obscenity by mail, should also ban sending abortion pills and abortion-related supplies. At least a handful of judges and justices seem to agree.
Even without their help, high-level officials in a prospective second Trump administration are ready to get it done through agencies without the fanfare of Congress debating a national abortion ban. Trump lawyer Jonathan Mitchell, architect of Texas’s six-week ban, put it clearly, “We don’t need a federal ban when we have Comstock on the books.” He then expressed his hope that both “pro-life groups” and Trump himself shut up about it, at least until after they’ve tricked voters into thinking they won’t ban abortion nationwide.
Which brings us back to Arizona and its own zombie law. No one could claim surprise about the 1864 ban coming to life, said Chris Love, the spokesperson for Arizona for Abortion Access, the coalition working to put a pro-abortion rights constitutional amendment on the November ballot. For one thing, that 15-week ban passed before Dobbs explicitly didn’t repeal the 19th-century law. For another, she said, legislators who support abortion rights “offer a bill every single year trying to repeal that 1864 ban.” Republicans just refuse to pass it.
Conversely, Republican legislators have had many opportunities to pass a fresh, total ban on abortion, or pass a six-week ban that Kari Lake also used to support; they still haven’t. Some, like the ones who were cheering the vote to block debate on a repeal on Wednesday, are true believers in safe seats. Others made a cynical calculation: Why go further out on a political limb when you can let the 19th century and obedient courts do your dirty work? “This is convenient,” said Love. “They get to throw their hands up and say they can’t do anything about it.”
It’s the actual, real-life effects of abortion bans around the country that have focused voter opposition, the chief worry of people who have to run tougher races, from Trump to Lake. The only remaining option to reconcile all this is to obfuscate. On Monday, NBC News published a PowerPoint presentation created by the general counsel to Arizona House GOP that is a powerful testament to how committed abortion opponents are to the “democratic process.” Among the “phases” it proposes is to “send voters two other options that conflict with” the pro-abortion rights initiative — the more misleading the better. For example, one of these options could “scale back 15-week law to 14-week law. In reality, a 14-week law disguised as a 15-week law because it would only allow abortion until the beginning of the 15th week.” The pitch is literally “Changes narrative — Republicans have a plan!” The counsel added that this strategy also puts “Democrats in a defensive position to argue against partial birth abortions, discriminatory abortions, and other basic protections.”
This is an old playbook, dreaming up hypotheticals and wedge cases to make abortion sound as dastardly as possible. It almost certainly doesn’t work anymore, because it was created for a time when Republicans were insulated from the consequences of their own unpopular abortion policies by the slender federal protections for abortion. In the world we live in now, total abortion bans are being enforced to dismal consequences.
Even without being able to enforce the law, Republicans have managed to leverage the chaos against abortion patients themselves. Since Dobbs, the number of abortions has actually gone up in states where the procedure is still legal, which for now includes Arizona, but there, abortions have actually declined, which doctors have attributed to confusion about what law is in effect. Says Love, “The chaos has always been the point.”
