Arizona's Abortion Ban Just Sent Women Back to 1864 The state supreme court's ruling worked out exactly how it was intended to.
By Charles P. Pierce PUBLISHED: APR 09, 2024 3:16 PM EST
As I was saying...
In Arizona, I am sure there are many "decent, normal people who do volunteer work, help shovel after a storm, look out for family and neighbors". Unfortunately, those same people elected a state supreme court that, on Monday, dropped the state back into the Zone of Totality about half-past Sherman's march. From the Washington Post:
Under the 1864 territorial law, which went into effect 48 years before Arizona became a state, anyone who administers an abortion could face a mandatory prison sentence of two to five years. That ban could compel Arizona’s licensed abortion clinics to ramp down dramatically or shutter — though it’s unclear how the decision will be enforced.
The question of abortion legality landed before Arizona’s Supreme Court after the state’s former attorney general, a Republican, asked the justices to restore the 160-year-old ban, setting off a litigation battle with Planned Parenthood. (You may recall that the Wisconsin supreme court threw out an attempt to breathe life back into that state's ancient prohibition. The decision came when an election handed the Democrats a majority on the bench. These two things are not coincidental.)
As it happens, in today's New York Times, the ever-essential Michelle Goldberg has an excellent survey of the post-Roe battlefield with particular emphasis on the GOP's attempt to use the long-dormant Comstock Laws to make war on reproductive rights, and how that skirmish might open the door for other assaults on questions we long ago thought settled.
Key to these plans is the Comstock Act, the 19th-century anti-vice law named for the crusading bluenose Anthony Comstock, who persecuted Margaret Sanger, arrested thousands, and boasted of driving 15 of his targets to suicide. Passed in 1873, the Comstock Act banned the mailing of every “obscene, lewd, lascivious, indecent, filthy or vile article,” including “every article, instrument, substance, drug, medicine or thing” intended for “producing abortion.”
Until quite recently, the Comstock Act was thought to be moot, made irrelevant by a series of Supreme Court decisions on the First Amendment, contraception and abortion. But it was never actually repealed, and now that Trump’s justices have scrapped Roe, his allies believe they can use Comstock to go after abortion nationwide.
The 2025 Presidential Transition Project, a coalition of major right-wing think tanks, has published a 920-page plan for a new Trump administration, “Mandate for Leadership.” In it, Gene Hamilton, America First Legal’s vice president and a former Trump Department of Justice official, lays out an agenda for the department to target abortion medication.
“Following the Supreme Court’s decision in Dobbs, there is now no federal prohibition on the enforcement of this statute,” he wrote of Comstock. “The Department of Justice in the next conservative administration should therefore announce its intent to enforce federal law against providers and distributors of such pills.” (“Mandate for Leadership” also says that a Trump F.D.A. should repeal approval for medication abortion.)
I think we've pointed out on several occasions that they're coming for it all. Griswold is in clear peril, as is Obergefell. The Chevron test seems to be a dead measure walking, so you can pretty much say goodbye to, say, the Clean Water Act. And, in Arizona, women find that their rights now reside somewhere 17 years before the Gunfight at the OK Corral, and it's already passed high noon.
Charles P Pierce is the author of four books, most recently Idiot America, and has been a working journalist since 1976. He lives near Boston and has three children.
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