A ban on nearly all abortions in Arizona doesn’t sit well with the Republican former governor whose expansion of the state Supreme Court allowed him to appoint the four conservative justices whose ruling cleared the way for it.
Doug Ducey is among Republicans in several states who are wrestling with the consequences of their opposition to abortion since the U.S. Supreme Court overturned Roe v. Wade in 2022. He expanded the state court in 2016, but thinks its ruling this week went too far.
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After the Arizona court ruled 4-2 on Monday to revive an 1864 law that criminalizes abortion throughout pregnancy unless a woman’s life is at risk, Ducey posted on the platform X that it was “not the outcome I would have preferred." He said a law he signed in 2022 banning abortions after 15 weeks of pregnancy was more in line with what voters want.
In Virginia, Kentucky and Ohio, where an abortion ban signed into law by Republican Gov. Mike DeWine got overturned in a referendum that enshrined the right to an abortion in the state constitution, the issue has helped Democrats win races and in some cases begin to reverse Republican-led bans.
More may be in store. In Florida, the state's high court cleared the way for a six-week ban that Republican Gov. Ron DeSantis signed while also allowing an abortion-rights referendum go before the state’s voters this November.
Abortion also is a major feature in the presidential race, potentially boosting turnout for Democrats and putting down-ballot Republicans on a back foot. Polls show most U.S. adults don’t support tough restrictions.
Donald Trump, who recently opined that abortion's legality should be left to individual states, has called DeSantis’ approval of Florida's ban a “terrible mistake. " The former president who appointed three of the U.S. Supreme Court justices who overturned Roe v. Wade also said the Arizona Supreme Court ruling went too far.
Ducey said in his post on X that the ban he signed was “thoughtful conservative policy, and an approach to this very sensitive issue that Arizonans can actually agree on."
His comment followed the better part of two years of legal wrangling over the 1864 Arizona law.
The Supreme Court ruling took a fair amount of time, four months after arguments before the court and longer than some expected, said Barbara Atwood, professor emerita at the University of Arizona law school.
“Frankly, I think they struggled,” she said of the justices.
Besides Ducey's five appointees, one of whom abstained from the ruling, two are appointees of Jan Brewer, Arizona's Republican governor from 2009-2015.
Ducey had defended his expansion of the court from five to seven justices. He said the state had outgrown the smaller court and an expansion was long expected. The justices at the time said their workload was manageable and opposed the move.
The crux of the abortion case was whether Arizona’s 2022 or 1864 ban applied after Roe v. Wade was overturned. In late 2022, an appeals court rejected the argument of the state’s elected Republican attorney general, Mark Brnovich, that the 1864 law held sway.
Days later, Democratic Gov. Katie Hobbs and Attorney General Kris Mayes took office, but the case remained alive through the efforts of an anti-abortion intervener.
The legal uncertainty was written into the law outlawing abortion after 15 weeks. It stated that the state’s much stricter 1864 law was not being repealed “by implication or otherwise.”
But even Republicans disagreed over which law would take precedent. In their ruling, the majority justices noted Ducey thought the ban he signed should take effect.
“It’s just interesting that justices who he appointed have reached a point that is at odds with his own understanding,” said Atwood. “It contributed to the general uncertainty about this whole topic.”
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Gruver reported from Cheyenne, Wyoming. J.J. Cooper and Jacques Billeaud in Phoenix contributed to this report.