Arizona is a Test Case for the Post-Roe GOP

A pro-life movement capable of gaining ground in swing states is not one that ignores political reality.

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Today we are joined by Joe Pitts, cofounder and CEO of the Western Tribune, who writes about the Arizona Supreme Court’s recent decision to put a territorial ban on abortion into effect pending litigation in lower courts.

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Earlier this week, Arizona’s top court ruled that the law governing abortion in Arizona since mid-2022 — which banned abortion after 15 weeks of pregnancy, with some exceptions afterward — is superseded by an earlier law banning abortion from conception onward. (The earlier law allows abortions when the mother’s life is in danger.) The court delayed the ruling from going into effect immediately, moving particular issues raised in the case back down to lower courts.

The opinion of the court rests on the argument that the law passed in 2022 was only intended to remain in effect so long as Roe v. Wade remained the law of the land. When Roe was repealed in 2022, Justice John Lopez and the majority wrote, Arizona’s ban on abortion from conception went into effect. “To date, our legislature has never affirmatively created a right to, or independently authorized, elective abortion,” wrote Justice Lopez. “We defer, as we are constitutionally obligated to do, to the legislature’s judgment, which is accountable to, and thus reflects, the mutable will of our citizens.”

The ruling precipitated a flurry of national and local news coverage, alongside quick reactions from state leaders on both sides of the aisle. Democrats immediately condemned the ruling, calling for the legislature to enshrine abortion rights into law as soon as possible. Gov. Katie Hobbs released a statement condemning those whom she described as “extremists in the legislature” for refusing to protect abortion rights. Even President Joe Biden chimed in, saying that the law was back in effect “because of Republican elected officials committed to ripping away women’s freedom.”

Now it seems that Democrats are planning to use the momentum from this ruling to push a ballot initiative establishing abortion as a constitutional right over the finish line in November. “Not only will voters have the opportunity to weigh in on this ballot measure, but they’ll also have the chance to elect new legislators,” Hobbs said during a CNN interview. Democratic strategists are hopeful that this ruling, combined with the pro-abortion initiative and former President Donald Trump’s presence on the ballot, will be what it takes to finally flip the Arizona legislature blue. The last time Democrats held either house was in 1992.

Notably, few Republicans were willing to applaud the court’s decision. Former Gov. Doug Ducey, the Republican who signed the 15-week ban into law, said that the court’s decision was not his preferred outcome. He urged state lawmakers “to heed the will of the people and address this issue with a policy that is workable and reflective of our electorate.” Rep. Juan Ciscomani, a freshman Republican congressman representing a swing district in southern Arizona, declared the ruling a “disaster for women and providers.” State Rep. Matt Gress, who represents a swing district in Scottsdale, said that he “categorically reject[s] rolling back the clock to a time when slavery was still legal,” referring to the law’s original enshrinement into law in 1864 under the Howell Code.

Kari Lake, the leading Republican candidate for the state’s soon-to-be-vacant U.S. Senate seat, joined Trump (who echoed Ducey’s argument that abortion is ultimately up to “the will of the people”) and many fellow Arizona Republicans in opposing banning abortion from conception. In her statement, Lake also outlined what she would support if she is elected to the Senate in November: leaving the issue of abortion up to the states, a ban on federal abortion funding, legal protections for in-vitro fertilization, and more.

Now that abortion has finally returned to the states — and, by extension, the will of each state’s citizens — pro-life lawmakers are quickly discovering the difference between declaring oneself “pro-life” and actually enacting pro-life legislation. Judging from the initial reaction of elected officials, the pro-life movement has still not gained its footing in the wake of Dobbs v. Jackson, the Supreme Court ruling that overturned Roe.

Cathi Herrod, the president of the Center for Arizona Policy — regarded as the most influential socially conservative think tank in the state — applauded the decision, saying that it was not only legally correct but morally sound in upholding a law that “acknowledges the sanctity of all human life and spares women physical and emotional harms of abortion.” The House Freedom Caucus also backed the decision, with their members refusing to join their more moderate counterparts in exploring legislative reforms that would legalize abortion up to 15 weeks. But these few Republicans backing the decision are in the minority.

As it stands, the return of abortion policy to the states is pushing many Republican elected officials away from standard pro-life positions. For them, the logic is simple: Most Arizonans oppose a ban from conception onward, and we need to retain political power to have any effect on policy. At the same time, their more stalwart counterparts argue that ceding ground to the pro-choice lobby will forever make life a losing issue. Perhaps they both have a point.

A pro-life movement capable of gaining ground in swing states is not one that ignores political reality. It is abundantly clear that the will of most Arizonans is to keep abortion legal at least until the end of the first trimester, and there is no winning strategy in a democratic system of government that can bypass the will of the people (nor should we want to do so). The bedrock principle of self-government is that the people ultimately govern.

That said, policymakers simply following the polls wherever they lead is not leadership — it’s impotence. “Your representative owes you, not his industry only, but his judgment; and he betrays you instead of serving you if he sacrifices it to your opinion,” wrote Edmund Burke. A thriving post-Roe pro-life movement can’t afford to lose sight of its foundational commitment to the protection of human life and the defense of human dignity — spanning the orphan, the widow, the single mother, and the baby in the womb. But it also must reckon with the demands of reality, settling for compromise where necessary. 

The pro-life movement’s primary mode of action now must be that of persuasion. And in the style of Francis of Assisi, such persuasion will often take the form of deed rather than speech. Tactful political leaders who can make the pro-life argument while navigating political reality are equally as important as crisis pregnancy clinic managers who counsel women in their greatest moments of need; families that choose to foster or adopt children in need of loving homes; and church, synagogue, and mosque communities that pool resources to support and show love toward women facing unplanned pregnancies.

Only time can tell what the future of the pro-life movement holds. But the moral urgency of life issues — paired with most people’s fundamental belief in the dignity of human life — should assure us that even in the face of momentary setbacks, the cause of life will live to see another day.

Joe Pitts is a senior columnist for 1912. He serves as Chairman of the Board and CEO of the Western Tribune, a 501(c)(3) nonprofit news media company. He founded the company in 2021 alongside Clay Robinson.

Full disclosure: One of the Western Tribune’s advisory board members currently serves on the Arizona Supreme Court. He was not consulted nor did he play any role in the production of this column.