The Republican former governor who expanded the state Supreme Court to pick the four conservative judges who upheld the nearly all-abortion ban in Arizona doesn't like it.
Since the Supreme Court reversed Roe v. Wade in 2022, Republicans like Doug Ducey are grappling with the implications of their abortion opposition. After expanding the state court in 2016, he thinks its verdict this week was overly harsh.
Ducey wrote on platform X that the Arizona court's 4-2 decision to restore an 1864 law criminalizing abortion throughout pregnancy unless a woman's life is in danger was “not the outcome I would have preferred.” He stated his 2022 abortion ban after 15 weeks was more popular with voters.
Democrats have won races and begun to reverse Republican-led abortion bans in Virginia, Kentucky, and Ohio, where a referendum reversed Republican Gov. Mike DeWine's abortion ban and placed the right to abortion in the state constitution.
There may be more. The Florida high court approved Republican Gov. Ron DeSantis' six-week ban and an abortion-rights referendum this November. The presidential race's abortion debate may boost Democratic turnout and hurt down-ballot Republicans. Most American adults oppose strong restrictions, according to polls.
Trump, who recently said abortion should be left to states, labeled DeSantis' acceptance of Florida's ban a "terrible mistake." The previous president who appointed three judges who overturned Roe v. Wade claimed the Arizona Supreme Court verdict was too far.
Ducey wrote on X that his prohibition was “thoughtful conservative policy, and an approach to this very sensitive issue that Arizonans can actually agree on.” He made this comment after two years of judicial battles over the 1864 Arizona statute. Barbara Atwood, University of Arizona law school professor emerita, said the Supreme Court verdict took four months after arguments, longer than expected. “Frankly, I think they struggled,” she remarked of the justices.
Jan Brewer, Arizona's Republican governor from 2009-2015, appointed two of Ducey's five appointees, one of whom abstained from the verdict. Ducey supported his five-to-seven justice expansion. He said the state outgrew the smaller court and expected an expansion. The justices opposed the measure, saying their workload was reasonable.
The abortion lawsuit hinged on whether Arizona's 2022 or 1864 ban applied post-Roe. Mark Brnovich, the state's elected Republican attorney general, argued that the 1864 legislation applied in late 2022, but an appeals court disagreed. An anti-abortion intervener kept the case alive after Democratic Gov. Katie Hobbs and Attorney General Kris Mayes took office days later.
Legal uncertainty was built into the 15-week abortion ban. The state's stronger 1864 statute was not repealed “by implication or otherwise.” Even Republicans divided on which law prevailed. The majority justices observed Ducey wanted his ban to take effect. “It’s just interesting that justices he appointed have reached a point that is at odds with his own understanding,” said Atwood. “It contributed to the general uncertainty about this topic.”
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