Arizona shows that punting to the states will not alleviate Trump’s abortion problem

It only took a day – and a stunning court ruling reviving a Civil War-era abortion ban in a vital swing state – to disprove Donald Trump’s claim that he had taken the issue of abortion “largely out of play” for the 2024 election.

The Arizona Supreme Court’s order for the state to implement a 160-year-old law, which contains a single exception to save the life of a pregnant person, opened a wide lane for Democrats in a state that could decide the presidential election and the destiny of the Senate. Democrats see an opportunity to campaign on what’s been a winning issue for them recently – reproductive rights – and to appeal especially to suburban women.

The ruling was the latest in a series of hardline court decisions and moves by conservative state legislatures in the wake of the US Supreme Court’s overturning of a constitutional right to an abortion in 2022. It represents yet another significant victory for a 50-year campaign by anti-abortion activists. And it threatened to create another swathe of the United States where abortion services are not available.

For Trump, the timing of the ruling could not have been more glaring.

On Monday, the presumptive Republican nominee had sought to neutralize the abortion issue – one of his greatest vulnerabilities as he seeks to return to the White House. Trump’s punt, which would have all abortion policy left to the states to decide, appeared designed to give the impression that he opposes a federal ban on abortion, even though he had earlier publicly flirted with the possibility of a ban on abortions at 15 weeks. The Biden campaign on Tuesday complained that some reporters had taken the ex-president’s words at face-value on Monday and pointed out he didn’t specifically oppose a ban on abortion.

If what happened in Arizona is what unfolds when abortion is left to the states, Trump’s damage control effort was even more fragile than it seemed on Monday. For abortion rights campaigners, the Arizona decision is symptomatic of nationwide chaos and splintered rights caused by the overturning of Roe v. Wade. And it’s easy for them to point to who is to blame – Trump did it for them.

The ex-president said in a video on Monday that he was “proudly the person responsible” for the ending of the nationwide constitutional right to abortion through the unassailable conservative majority he built on the US Supreme Court. He is loath to disown his most important legacy achievement – one that cemented his bond with social conservative voters as he swept to his third GOP nomination this year. At the same time, Trump – a shrewd reader of the shifting political winds – understands that an election about abortion could scuttle his hopes of a second term. His leave-it-to-the-states formula, therefore, appeared to be an attempt to stand on the most defensible political ground possible even if he knows he’s still deeply vulnerable on the issue.

But the former president on Wednesday was thrust yet again into an effort to finesse his position on abortion – a task that is likely to become very familiar between now and November.

Asked in Atlanta whether the Arizona Supreme Court had gone too far, Trump answered, “Yeah, they did, and that’ll be straightened out, and as you know, it’s all about states’ rights. That’ll be straightened out, and I’m sure the governor and everyone else are going to bring it back into reason and that will be taken care of, I think, very quickly,” Trump said in comments that were underscored by his purposeful vagueness on an issue that has the capacity to damage him more if he takes a definitive position.

Democrats pounce on Trump’s discomfort

Just how exposed Trump is could be seen in the fresh Democratic assault in the wake of the Arizona ruling. Vice President Kamala Harris, who will travel to the state Friday, used the ex-president’s own words against him as the Biden campaign grabbed for the initiative in a state the president narrowly won in 2020 but that is a toss-up at best for him this year. With voters sour on Biden’s leadership of global crises, his handling of immigration and high grocery bills, gas prices and still high interest rates, Democrats badly needed an opening.

“Arizona just rolled back the clock to a time before women could vote – and, by his own admission, there’s one person responsible: Donald Trump,” Harris said in a statement. The vice president’s comment is one that Americans will hear thousands of times between now and Election Day because every time there is any controversy on abortion, Democrats will point fingers at Trump.

The Biden campaign this week debuted a wrenching ad that highlighted the plight of a Texas woman who nearly died from infections and may not be able to get pregnant again because, under the state’s restrictive new abortion law, she was denied treatment after a miscarriage. “Donald Trump did this,” reads a sentence on a black screen at the end of the ad. This case underscores how even women who are pregnant by choice and want to carry their babies to full term can be endangered by restrictive abortion laws.

Trump has reacted angrily to some fellow Republicans’ criticism of his newly announced stance on abortion policy – from longtime ally Sen. Lindsey Graham of South Carolina and even from his former vice president, Mike Pence, who on Monday called Trump’s position a “retreat.” The former president delivered a lecture on social media, warning Republicans that the greatest triumph of the modern conservative movement paradoxically threatened to sow negative electoral consequences for years to come.

His positioning on the issue offered a fascinating snapshot into Trump’s political brain. He, as usual, put political expediency over policy or ideological commitment, was above all concerned with his own electoral prospects and demanded loyalty from conservatives, even as he cast aside political allies.

“We cannot let our Country suffer any further damage by losing Elections on an issue that should always have been decided by the States, and now will be!” Trump wrote on Truth Social Monday. “By allowing the states to make their decision … we have taken the Abortion Issue largely out of play,” Trump wrote.

Trump’s hopes may not be realized

Trump’s claim that he has put the issue “out of play” is unlikely to be borne out – and not just because Democrats believe they have him in a vise on an issue that could help them win them the election.

Returning abortion to the states – the core justification of the conservative Supreme Court majority overturning Roe v. Wade – doesn’t mean everyone will quietly agree to decide the issue. The opposite has already happened; the Supreme Court created nationwide chaos. Anti-abortion rights campaigners enthusiastically moved to the next stage of their battle — seeking in many cases to eradicate abortion entirely. Conservative legislatures and judges are combining to pass and uphold even more restrictive conditions. Florida, for instance, is about to enact a six-week abortion ban upheld by its judiciary. In Alabama, IVF fertility treatments were suspended temporarily because the state Supreme Court ruled that frozen embryos should be considered babies. And an attempt to restrict the nationwide use of a widely used abortion pill, mifepristone, recently reached the US Supreme Court.

Abortion rights campaigners, meanwhile, are seizing on the liberal movement’s greatest failure in decades — the overturning of Roe v. Wade – believing they have an issue that can drive women, suburban and young voters to the polls despite their widespread disappointment with Biden. Democrats have won important victories when they can get abortion on the ballot, even in conservative states like Ohio and Kentucky in recent years. They believe that a ballot measure in Florida this fall on whether to enshrine abortion rights in the state constitution could spike turnout and even put a state Trump twice won back in play, as well as a key Senate race.

Arizona’s law dates back to as early as 1864 – before Arizona became a state – and was codified in 1901. It carries a prison sentence of two to five years for abortion providers. It puts Arizona among the states with the strictest abortion laws in the country, alongside Texas, Alabama and Mississippi, where bans exist with almost no exceptions. The state Supreme Court delayed enforcement of the law for 14 days to allow challenges in lower courts.

Democratic Gov. Katie Hobbs said that the court decision was a sign that “the fight for our reproductive freedoms is far from over.” And the state’s Democratic Attorney General Kris Mayes vowed, “No woman or doctor will be prosecuted under this draconian law … as long as I am attorney general. Not by me, nor by any county attorney serving in our state. Not on my watch.”

The potential for the Arizona decision to damage the GOP was exemplified by the speed with which top Republicans in the state spoke out against it — even in some cases repudiating their earlier support for abortion bans.

“I oppose today’s ruling, and I am calling on Katie Hobbs and the State Legislature to come up with an immediate common sense solution that Arizonans can support,” Republican Senate candidate Kari Lake said. In a June 24, 2022, interview on “The Conservative Circus with James T. Harris” podcast, Lake – who was then running for governor – had said, “I’m incredibly thrilled that we are going to have a great law that’s already on the books. I believe it’s ARS 13-3603 so it will prohibit abortion in Arizona except to save the life of a mother.” ARS 13-3603 is the law banning nearly all abortions that the Arizona Supreme Court on Tuesday required the state to enforce.

Lake’s Democratic rival for the state’s open Senate seat, Rep. Ruben Gallego, was quick to highlight the inconsistency, portraying Lake as typical of “extremist politicians” who “are forcing themselves into doctors’ offices and ripping away the right for women to make their own healthcare decisions.”

This story has been updated with additional reaction.

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