Arizona Supremes Uphold Anti-Abortion Law

Another day, another all-Republican state Supreme Court giving the Democrats ammunition for the 2024 campaign. Last week, it was Florida. Yesterday, it was Arizona, as the Supreme Court there ruled 4-2 that a very old Arizona law prohibiting all abortions from the point of conception, unless the life of the mother is at risk, is valid.

Here, in case you'd like to read it for yourself, is the law in question:

A person who provides, supplies or administers to a pregnant woman, or procures such woman to take any medicine, drugs or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless it is necessary to save her life, shall be punished by imprisonment in the state prison for not less than two years nor more than five years.

A great many of the headlines yesterday noted that the law was first hammered out in 1864, and was formally codified as part of Arizona law in 1901, meaning it predates statehood (1912). This framing gives the impression that the timeline somehow makes the law invalid, but this is not the case. The Northwest Ordinance, which governs the process by which a territory becomes a state, makes clear that ordinances passed during the territorial era carry the force of law once statehood is achieved.

Instead, the argument made by lawyers from Planned Parenthood and other pro-choice groups was that subsequent Arizona laws, such as the one from 2022 prohibiting abortions past 15 weeks, had superseded the territory-era law. Chief Justice Robert M. Brutinel and Vice Chief Justice Ann Timmer, who happen to be the two Jan Brewer appointees remaining on the court, agreed with this argument. Four of the Doug Ducey appointees did not, resulting in a 4-2 decision. The fifth Doug Ducey appointee, Bill Montgomery, recused himself after it came out that he'd posted messages to Facebook that said things like Planned Parenthood is guilty of "the greatest generational genocide known to man." So, we have a pretty good idea of how he would have voted, if he had participated in the decision.

At the moment, the Court's decision is stayed, as the justices have ordered a lower court to take another look at some elements of the case. There is also another, separate, case pending that will extend things a bit further. So, abortion procedures will be available for roughly another month, even if the current status quo holds. In addition, Gov. Katie Hobbs (D-AZ) and state AG Kris Mayes (D) have both said they will not enforce the more draconian limit. That might afford little protection for doctors and clinics in counties or cities with a zealous and/or ambitious Republican city attorney, however.

Is there going to be any political fallout from this decision? Hmmm... let's see:

• Within minutes of the Arizona decision being announced, Joe Biden put out a statement condemning the "cruel ban" and helpfully reminding anyone who does not already know that "Vice President Harris and I stand with the vast majority of Americans who support a woman's right to choose." The President also used eX-Twitter to send some shade Trump's way:
  
  
  
  
• Kamala Harris announced that she will travel to Arizona on Friday "to continue her leadership in the fight for reproductive freedoms." What exactly she will do there is not clear, but we assume photo ops will be involved.
  
  
• Democratic U.S. Senate candidate Rep. Ruben Gallego (D-AZ) posted a message to eX-Twitter: "Today's ruling is devastating news for Arizona women, whose rights have been set back 160 years. I will never stop fighting for Arizonans' reproductive freedom and will do all I can to protect abortion rights." He also posted it in Spanish: "Nunca dejaré de luchar por la libertad reproductiva de los habitantes de Arizona y haré todo lo posible para proteger los derechos al aborto."
  
  
• Republican U.S. Senate candidate Kari Lake, who previously voiced strong support for the 1901 law, calling it a "great law," has decided maybe it's not so great anyhow, and issued a statement that read, in part: "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."
  
  
• Rep. David Schweikert (R-AZ), who represents (AZ-01), an R+2 district that Biden won in 2020, tweeted: "I do not support today's ruling from the AZ Supreme Court. This issue should be decided by Arizonans, not legislated from the bench. I encourage the state legislature to address this issue immediately."
  
  
• Rep. Juan Ciscomani (R-AZ), who represents AZ-06, an R+3 district that Biden also won in 2020, posted a statement to eX-Twitter that reads, in part: "Today's ruling is a disaster for women and providers. In Arizona, our 15 week law protected the rights of women and new life. It respected women and the difficult decision of ending a pregnancy—one I will never personally experience and won't pretend to understand. As my record shows, I'm a strong supporter of empowering women to make their own healthcare choices and I oppose a national abortion ban."

So, Democrats are treating this like manna from heaven. And Republicans who have any need whatsoever for some non-MAGA votes are running for the hills.

Clearly, the decision is going to loom large in November. Even if the courts decide that maybe the 1901 law isn't OK after all, or the Republican-dominated Arizona legislature steps in with a repeal, supporters of abortion access in Arizona have been put on notice. They will surely turn out in droves to vote on the (likely) initiative protecting abortion access, which should give the blue team a boost in the presidential and Senate elections, not to mention the swingy House elections.

Meanwhile, the timing could not have been worse for Donald Trump. He makes a big show of backing states' rights when it comes to abortion, and less than 24 hours later, a state gives an object lesson in the most extreme application of that approach. You can tell Trump knows this is a disaster for him, as his only abortion-related "truth" on Tuesday was a link to a ball-washing piece from Marc Thiessen praising Trump for his shrewd political maneuvering on the abortion issue. Wonder if Thiessen wishes he could have that one back?

The big question of the cycle, at least for the Democrats, is whether the more viable path to victory for Biden is through the Rust Belt or the Sun Belt. With recent events in Florida and Arizona, it would seem that the answer is "the Sun Belt." (Z)

Indiana Court of Appeals also Weighs in on Abortion Access

Arizona wasn't the only state to have a big abortion-related court decision this week. Indiana had one, too, although it has gotten relatively little attention. Maybe that's because it was an appellate decision, and so the story isn't over yet. Or maybe it's because it's hard to know what to make of it.

The case pitted a group called Jewish Hoosiers for Choice plus five anonymous plaintiffs of unknown religious faiths against the Medical Licensing Board of Indiana. The plaintiffs' argument is that Indiana's abortion ban is at odds with the right to religious freedom guaranteed by both the U.S. Constitution and state law, and that they should be allowed to procure abortions consistent with their "sincerely held religious beliefs."

In other words, we've got a case that pairs a notion favored primarily by liberals, namely abortion access, alongside a notion that is favored primarily by conservatives, namely being able to play by a different set of rules for religious reasons. It's hard to tell exactly what the partisan slant of the three judges is, but one (Leanna K. Weissmann) was appointed by a Republican governor, one (Melissa S. May) was appointed by a Democratic governor, and one (L. Mark Bailey) was elected and re-elected in a landslide in a pretty red part of the state. So, we would guess we're looking at two Republicans and one Democrat here. In any event, they ruled unanimously that religious adherents should indeed be allowed to claim an exemption to the abortion ban.

This will go to the Supreme Court of Indiana, where it will be heard by five Republican appointees. Maybe they will put the kibosh on it, and say that being Jewish does not entitle you to get an abortion. But maybe not. The appellate decision was unambiguous, and so too was the lower court decision that it affirmed. And because of the conservative fondness for "religious liberty," the Indiana Supremes are likely loath to weaken that notion, or to engage in the hypocrisy that it only counts for Christians and not for Jews (and members of whatever other faiths the anonymous plaintiffs represent).

Of course, if Indiana does allow religious exemptions to the abortion law, then it opens all kinds of cans of worms. Pregnant women up and down the state are going to have a Come to Jesus moment (one of the more liberal Christian denominations, presumably, like the Presbyterians), or are going to discover their inner Jew or inner Buddhist or inner Zoroastrian. The Church of Satan and the Church of the Flying Spaghetti Monster will do a brisk business in membership cards. People in other states will file similar suits; some will win and some will lose. And that, in turn, will likely mean that the matter ends up with the U.S. Supreme Court. Who knows what they will do with it?

It's really quite remarkable that the Supremes thought they were addressing the abortion question once and for all with Dobbs. What they actually did was unlock a giant Pandora's box. (Z)

Trump Legal: So Good at Being in Trouble

Donald Trump thought he had bought himself some breathing room in terms of his troubles with AG Letitia James. Maybe not so much, as it turns out, as there are now as many as three new problems he has to be worried about.

First up, James has learned that there were some documents that would have been very germane to the trial of former Trump Organization CFO Allen Weisselberg, but that were not turned over, despite a subpoena. That is potentially fraud, and the AG sent a letter yesterday asking Judge Arthur Engoron to investigate the matter. We shall see what comes of this; maybe the Trump family couldn't find the documents because they were misplaced in a bathroom at Mar-a-Lago.

The second headache involves the bond that Trump DID NOT submit in order to protect his properties—you know, the one for $464 million? His attorneys told the Court that there was simply no option available for securing a bond of that size, and that persuaded the Court to drop the necessary amount to $175 million. Thereafter, both Trump and financier Don Hankey (who backed the $175 million bond—or maybe not; keep reading) publicly remarked (actually, more like bragged) that Hankey had offered to back the full $464 million. If that is true, and Trump's attorneys did not reveal that to the court, then they and/or their client could be in big trouble.

The third, and very possibly biggest, headache involves the bond that Trump DID submit, the one for $175 million. That instrument has been put under the microscope, and it's not looking good. To start, Hankey's company, Knight Specialty Insurance Co., is not registered to do business in New York, and also neglected to submit certain required paperwork to the court. Further, it does not appear that Knight has either the liquid assets needed to pay off the bond, nor does it overall have the level of assets needed to take on this kind of risk (a company that appears to be worth a total of $400 million or so, and that has cash reserves of $140 million or so, is not in a position to back a $175 million bond). Finally, experts who have looked at the paperwork say the bond agreement is written in a strange way, such that Trump's real backer appears to be Donald Trump, and not Knight Insurance.

We already noted that both the court and AG Letitia James were leery of the bond, and were demanding more information, but it's only been in the last 24 hours or so that the extent of the problems has become clear. There will be a hearing on April 22, and at least one outlet is reporting that James might not wait that long, and may begin seizing money or property in short order, on the basis that Knight Insurance is not able to do business in New York. You'll know if James actually moves forward; just watch Truth for a bunch of angry, racist postings from @realDonaldTrump. (Z)

Trump Campaign Is Getting Nervous about Radical Fu**ing Kennedy

Yesterday, we had an item about Robert F. Kennedy Jr. campaign staffer Rita Palma, who proudly declared that the main purpose of the whole thing is to prevent Joe Biden's reelection. Turns out, per a report from CNN yesterday, she was also a participant in the 1/6 insurrection.

Meanwhile, Kennedy himself can't quite decide what his views on 1/6 actually are. He claimed that the e-mail that went out under his name, calling the convicted 1/6 participants "activists" who had been "stripped of their Constitutional liberties," was a mistake and did not reflect his personal feelings. However, last week, he also said that, if elected president, he would appoint a special counsel to study whether the insurrectionists were unfairly convicted, and that he would consider pardoning them. And at various times in the past couple of weeks, Junior's said that the incident has been overblown, that the "protesters" did not carry weapons (false) and that what happened certainly does not qualify as an insurrection. He also shared his view that the real story of 1/6 is the "weaponization of the federal government." Note, incidentally, that he said these things to different outlets at different times, so it's not like he simply misspoke once, or he was having a bad day, or he misheard a question.

At this point, we have noted several times that the more that Kennedy sounds like a Donald Trump clone, the more likely he takes more votes out of Trump's hide than Biden's. If a Democratic-allied super PAC starts running ads with Kennedy stating his belief that vaccines are harmful, that will pull in the anti-vaxxers, most of whom would probably otherwise vote for Trump. It would appear that the Republican Party, the Trump campaign, and their media mouthpieces have noticed the same thing. And so, a full-on GOP assault on Junior is commencing:

• The RNC, which regularly distributes lists of talking points to prominent Republicans, has put together a whole memo on Kennedy. It describes him as a "far-left Democrat," "an energy radical who wants to end fossil fuels," a conspiracy theorist, and someone who has "embraced the Democrat agenda." Each of these points is supported with illustrative examples; the conspiracy theorist section, for example, charges the candidate with COVID-related conspiracy theories, with believing that wi-fi causes cancer and vaccines cause autism, with advocating the notion that past presidential elections were "stolen" by the supposed "winner," and with accusing the CIA of killing his uncle John. We must admit, we did not know that these kinds of conspiracy theories were disqualifying for a Republican. Guess Donald Trump can't be the Party's presidential candidate, either.
  
  
• The staff of The Bulwark, which is in touch with various activist elements of the MAGA movement, has received intelligence that a group of pro-Trump activists are planning to launch a campaign called "Radical Fu**ing Kennedy," which will highlight stories of RFK Jr.'s alleged liberal past.
  
  
• Trump allies in the right-wing media have spent the last week slamming RFK Jr., and some of them have banned Kennedy from further appearances on their shows. Leading the way here is Sean Hannity, who welcomed the candidate on his show numerous times, but now lambastes him as a "devout, radical environmentalist."

This is mostly interesting to us because it backs up our notion that RFK Jr. is becoming more a threat to Trump than to Biden. We don't think these Republican efforts are going to torpedo Kennedy's campaign. Our guess is that the candidate will do that all by himself. (Z)

Impeachment Slow-Walk Just Got a Little Slower

The House impeached DHS Secretary Alejandro Mayorkas on February 13. That is 58 days ago. Speaker Mike Johnson (R-LA) neglected to deliver the articles to the Senate, because he was just too busy with budget matters to take a 3-minute walk. Then, he did not deliver them because the House was in recess for 2 weeks. He promised that today would be the day, but... nope. He announced yesterday that he's going to sit on them for another week. "To ensure the Senate has adequate time to perform its constitutional duty, the House will transmit the articles of impeachment to the Senate next week. There is no reason whatsoever for the Senate to abdicate its responsibility to hold an impeachment trial," explained a spokesman for Johnson.

So, what's really going on? Well, it's a poorly kept secret that Senate Majority Leader Chuck Schumer (D-NY) is prepared to pencil-whip this thing into oblivion, either by having the Senate dismiss the articles of impeachment, or by sending them to some committee, for debate and consideration right after the committee marks up the bill addressing the nation's flying pigs problem, and the one that will combat global warming by arranging for hell to freeze over.

Not giving any time or attention to the impeachment is surely the right tactical call. The Senate has important business and can ill afford to waste 100 members' time on stunts. Further, treating the articles of impeachment seriously, even if it's for only a day or two, gives the impression that they are worthy of being taken seriously. If Schumer reroutes them straight to the circular file, by contrast, the whole thing will be quickly forgotten, except by people who were never going to vote Democratic anyhow.

Given Schumer's plan, Senate Republicans (well, the MAGA crew) are trying to scare up enough votes to force the upper chamber to hold an actual trial. The fact that they've had 58 days to do this, and have not succeeded, does not bode well for their being able to pull it off with benefit of an extra 7 days. So, the odds are that there will either be another extension next week, or that the Republicans will accept that they're not getting anywhere with this, and they'll need to find a different subject for the April installment of GOP Kabuki Theater. (Z)

Alabama Also Says Biden Has a Ballot Problem

Alabama Secretary of State Wes Allen (R) has just sent off a letter very much like the one that Ohio Secretary of State Frank LaRose (R) sent off about a week ago. Both letters warn the Biden campaign that this year's Democratic National Convention, scheduled for August 19-22, comes after the deadline for ballot certification. In other words, if the Democrats don't move their convention up, Biden could be booted off both states' ballots in November.

Whatever can be done? Hmmmmmmmmmm. Is there any historical precedent whatsoever for this situation? As it turns out, well, yes there is. A number of readers wrote in to point out that, in 2020, the Republican National Convention was held August 24-27. This makes sense, since the party that holds the White House always goes second. Anyhow, what did legislators in those two states do when they discovered the problem back in 2020? They quickly passed waivers granting the Republican Party extra time to send in its certification (in fact, Ohio had to grant that concession to both parties, as the 2020 Democratic convention was also held after the deadline).

Clearly, the Ohio and Alabama legislatures are going to have to blink here, right? Otherwise, they will get their pants sued off. They can't give concessions to one party and not the other. Alternatively, they could just permanently change the cutoff date to something more realistic. Six of the last eight Democratic conventions were not held in time to meet the current deadlines in Ohio and Alabama, along with five of the last eight Republican conventions. One wonders exactly what is being accomplished with these obviously unrealistic deadlines, not to mention these "dire warning" letters from the secretaries of state. (Z)

Fong Can Double Dip

As we noted earlier this week, Assemblyman Vince Fong (R-CA) is running to keep his seat in the state Assembly, and at the same time is running for the U.S. House seat that was vacated by Kevin McCarthy. Secretary of State Shirley Weber does not approve of this double dipping, and filed suit asking the state courts to force Fong to choose.

Yesterday, the state court of appeals decided that Fong can indeed remain on the ballot twice. Weber pointed out that, theoretically, a person could run for every single House seat in California, and that shouldn't be allowed. The court conceded that such a thing was theoretically possible, but that isn't the current situation, and it's a little too late to be forcing candidates to abandon a race after a primary has been held.

Whether Fong should run for two offices at the same time is a different question. He's unopposed for his seat in the Assembly, so that job is just his insurance policy. As to the House race, he's McCarthy's preferred successor and he took 42% of the vote in the primary. Fong's opponent will be Republican Mike Boudreaux, who took 24%. Fong is likely to cruise to victory, but keeping his options open may give the voters the impression that he's not fully committed to the House race, or at least that he's lacking confidence. Neither is a good message to send, and when you're the frontrunner by a lot, why risk throwing a wrench into the works?

Meanwhile, the justices dismissed the possibility of a person running for every California House seat at once, but that is exactly the sort of thing that Rocky De La Fuente, who tries to get on as many ballots as is possible—running for the U.S. Senate in, say, 6 different states at the same time—would do. Given that the loophole has now been put on display for all to see, it is likely that the California legislature will close it, and indeed, there are already bills in process that would do so.

And as long as we are on the subject of California politics, it was announced yesterday that there will be a recount in the CA-16 primary, where state Assemblyman Evan Low (D) and Santa Clara County Supervisor Joe Simitian (D) finished in a 30,249-vote tie for second place. Neither Low nor Simitian wanted this, since for each of them the continued survival of their candidacy is now a coin flip. However, it's really the only fair thing for the first-place finisher, former San Jose Mayor Sam Liccardo (D). We don't know the exact politics of the three candidates, but if one of them is pretty similar to Liccardo (say, both Liccardo and Low are moderates), then it gives a huge boost to the candidate who is the outlier (in this hypothetical, Simitian), even though that candidate finished in second place (and just one vote from third place). (Z)

Today's Presidential Polls

We are still going with Bullfinch polls, as they made it through our vetting process. But take them with a little salt. SurveyUSA is legitimate, however. The Minnesota poll is probably a statistical outlier, though. (Z)

State	Joe Biden	Donald Trump	Start	End	Pollster
Minnesota	44%	42%	Apr 03	Apr 07	SurveyUSA
Pennsylvania	44%	41%	Mar 22	Mar 26	Bullfinch Group

Click on a state name for a graph of its polling history.

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