Aborting Their Chances of Winning in 2024
Republicans are trying to lose the 2024 election.
There is no other way to look at it, given how often Republicans line up on the wrong side — and the losing side, politically — of the abortion issue. Even Donald Trump — though no stable genius — knows that restricting access to abortion is a losing issue.
“Many people have asked me what my position is on abortion and abortion rights,” Trump said this week in a statement posted on his Truth Social website. “My view is now that we have abortion where everybody wanted it from a legal standpoint, the states will determine by vote or legislation or perhaps both. And whatever they decide must be the law of the land — in this case, the law of the state.” And, of course, Trump bragged that his appointees to the Supreme Court voted to overturn Roe v. Wade, returning the question of banning abortion to the states.
It took a day to find out what leaving abortion to the states means in practice. The Arizona Supreme Court ruled that an 1864 law, with its near total ban on abortion, is the law in Arizona. A law written during the Civil War, when Arizona was still a territory (it did not become a state until 1912) and 50 years before the enactment of women’s suffrage, was declared valid in Arizona in 2024. The Arizona law is what is commonly referred to as a “zombie” law, a pre-Roe measure that became inoperative when the U.S. Supreme Court in 1973 guaranteed access to abortion nationwide, but which was left on the books by conservatives hoping for the overthrow of Roe. This week, a day after Trump tried to distance himself from the most extreme Republican views on abortion, the all-Republican Arizona Supreme Court proved, once again, that totally banning abortion is the likely result, in some states, of leaving the issue to the states.
The political composition of the Arizona Supreme Court does not reflect the state's current status as a battleground. In 2016, Republican Governor Doug Ducey successfully packed the high court, expanding its membership from five to seven justices. An ardent conservative, Ducey refashioned what had been a conservative court into one with an ultra-conservative bent. Ducey appointed all four of the justices in the majority on the abortion decision, while the two dissenters were appointed by Ducey’s more moderate Republican predecessor, Jan Brewer. (One justice recused himself because of a social media posting in which he accused Planned Parenthood of responsibility “for the greatest generational genocide known to man.”)
Poll after poll, whether opinion polls or electoral polls, have shown that a large majority of Americans believe decisions on women’s healthcare and reproductive issues should be left to women and their doctors. Yet, the Arizona Supreme Court decreed that a 150-year-old law adopted in territorial Arizona was now the law of the state. The Arizona Supreme Court is not an outlier: Courts in other states have taken similar positions (see Alabama’s high court ruling on frozen embryos and personhood). And, of course, as Joyce Vance, the author of the blog Civil Discourse, puts it: “Your gerrymandered state legislature is now in charge of your healthcare and the lives of people you love.”
When states hold referenda on abortion rights, the pro-choice side wins. It does not matter whether the state is red or blue. But that clear expression of popular will does not impress conservative jurors or right-wing legislators. Nor does it influence anti-abortion activists who are now trying to make it more difficult for ballot measures to prevail. In Florida, for example, a constitutional amendment guaranteeing access to abortion through the first 24 weeks of pregnancy is on the ballot in November. But the threshold for approval is not a simple majority. Passage of the amendment requires a 60 percent yes vote.
Voter support for abortion rights makes threading the needle on the issue increasingly difficult for Republicans. Trump tried to do just that this week — that is, thread the needle — by taking credit for appointing the justices who overturned Roe while endorsing their decision to return decisions on abortion access to the states. Arizona’s subsequent resurrection of a zombie law with its near total ban on abortions in the state shows that leaving it to the states will not likely help Republicans much at the polls.
Then, Trump made matters worse, making one wonder, through a sequence of cascading events, whether Republicans are truly trying to lose the presidential election. Monday, Trump tried to thread the needle by finding a middle ground on abortion; Tuesday, Arizona’s Supreme Court showed that there is no middle ground for the right-wing; and, then, Wednesday, Trump undid all he tried to do on Monday, maybe (hopefully) losing the election in the process. We can all agree, I am certain, that the only kind of sewing Donald Trump engages in is sowing discord. So, there is no surprise here that he is falling all over his own words.
According to the 1864 territorial law, doctors can be imprisoned for two to five years for performing an abortion. Asked whether abortion providers should be punished, Trump responded: “You know, everything we’re doing now is states and states’ rights. And what we wanted to do is get it back to the states, because for 53 years it’s been a fight. And now the states are handling it. And some have handled it very well, and the others will end up handling it very well.” The Biden campaign will be sure to run that quote as part of a campaign ad in all swing states between now and November.
Deep divisions within the Republican Party over abortion do not help the party’s electoral prospects. Despite his past sycophancy to the lord of Mar-a-Lago, South Carolina Senator Lindsey Graham could not escape Trump’s wrath this week. Graham criticized Trump’s supposed states' rights position on abortion. “For the pro-life movement, it’s about the child, not geography,” said Graham, who favors a national ban on abortion after 15 weeks. “So if you’re turning the pro-life movement into a geographical movement, I think you’re making a mistake.”
Trump lashed out at Graham for his temerity in questioning the former president. “I blame myself for Lindsey Graham,” Trump said in a post on his website. “The only reason he won in the Great State of South Carolina is because I Endorsed him.” No amount of past loyalty to Trump compensates for one disagreement. To Trump, Graham is now an apostate: “The Democrats are thrilled with Lindsey, because they want this issue to simmer for as long a period of time as possible.”
Indeed they do! Count on Democrats to point out time and again that Trump, if reelected, will do everything in his power to ban abortion nationwide. The ads practically write themselves; well, Trump and his minions write them. Democrats can resurrect Trump saying in 2016 that women deserve to be punished for having an abortion. They will cite Trump’s backing, as president, a House bill banning abortion. And they will note that anti-abortion strategists have been suggesting reviving the 1873 Comstock Act, another “zombie” law, to limit access to medications that end pregnancies.
Democrats may not have to do much to keep reproductive rights alive as an issue. Republicans appear eager to accomplish that task all by themselves. Yup! They really are are trying to lose the coming election. It may be the one good thing Republicans do this year.
Posted April 12, 2024