Two recent state supreme court decisions upholding stringent abortion bans in Arizona and Florida have the potential to shake up the November elections.
In both Sun Belt states, the rulings could buoy support for constitutional amendments that protect access to abortion. They could also create a liability for Republican candidates attempting to distance themselves from their party’s restrictive — and unpopular — abortion policies.
The political stakes are high. Arizona, in particular, is expected to have one of the most competitive Senate races in the country this year, and it could determine which party controls the upper congressional chamber. Plus, the state could play a deciding role in whether President Joe Biden returns to the White House.
The Arizona Supreme Court on Tuesday upheld a criminal abortion ban from 1864 — before Arizona was a state — that will render nearly all abortions illegal once it goes into effect. Abortion is currently legal in Arizona up to 15 weeks’ gestation. That decision followed one from Florida’s high court on April 1 that allowed a six-week ban — backed by Republican Gov. Ron DeSantis — to take effect beginning May 1. It will also replace a 15-week ban, enacted in 2022.
The rulings from the state high courts could have seismic implications for elections up and down November ballots. After both rulings, Democrats immediately went on the offensive while Republicans largely sidestepped and distanced themselves from the looming abortion bans.
Arizona is a historically conservative-leaning state that in recent election cycles has become a political battleground. Biden was the first Democratic presidential candidate that Arizonans backed in nearly 25 years, but they did so by just a 0.3-point margin. Florida, a one-time swing state, has been moving in the other direction — Republican former President Donald Trump easily carried the state in both his 2016 and 2020 presidential bids. But Biden’s campaign believes the six-week ban creates an opportunity in an otherwise challenging political climate.
Biden and Trump have been testing how to best talk about abortion access, which has roiled politics since June 2022, when the U.S. Supreme Court ended the federal right to abortion care with its ruling in Dobbs v. Jackson Women’s Health Organization. Biden is running on protecting abortion as he seeks a second term. Trump, who had three justices confirmed to the Supreme Court and lauded its Dobbs decision, declined to endorse a federal ban on Monday, saying that abortion policies should be enacted on the state level.
Biden’s campaign immediately tied Arizona’s ban to Trump’s role cementing the Supreme Court’s conservative majority and his recently stated support for state-level decision-making. “In their decision, the court cited the Dobbs decision 22 times to reinstate a law written in 1864 — before Arizona was a state, before the Civil War ended, and decades before women could even vote. And one person is responsible: Donald Trump,” a Biden campaign email said.
The ruling could also create a liability for Republican candidates attempting to distance themselves from their party’s restrictive — and unpopular — abortion policies.
Arizona’s full ban, which has only a very narrow exception to save the life of the pregnant person — an exception that doctors call unworkable in practice — is expected to take effect in about two months.
Its impact was immediately seen in one of the most competitive U.S. Senate races this cycle, between presumptive nominees Rep. Ruben Gallego, a Democrat, and Kari Lake, a Republican.
Gallego called Tuesday’s ruling “devastating for Arizona women and their families” and noted that Lake during her failed gubernatorial bid called the 1864 statute a “great law.” Lake, meanwhile, said that she now opposed the restrictive ban because it was “abundantly clear that the pre-statehood law is out of step with Arizonans.” She called on Democratic Gov. Katie Hobbs, who beat her in 2022, to come up with a state-level solution, but did not address the reality that the 1864 ban and the 15-week ban enacted in 2022 by Republicans are both state-level policies. She pledged that if elected, she would oppose federal funds for abortions as well as a federal ban.
Arizona for Abortion Access announced last week that, with three months to spare, they had collected enough signatures to put a state constitutional amendment to protect abortion on November ballots. The amendment will require a simple majority to pass. But, of the 11 states likely to have abortion-related ballot measures this year, Arizona is the most closely politically divided.
“Arizona families deserve the right to make their own decisions about pregnancy and abortion without the constant threat of government interference,” Chris Love, a spokesperson for the amendment campaign, wrote in a statement. “That belief is what fuels our campaign now more than ever, and we will fight like hell to restore abortion rights in Arizona this November.”
In Florida, the ban on abortions after six weeks of pregnancy — a time when many people do not yet know they are pregnant — will severely restrict availability in what has become a critical access point for people in the U.S. South, as most states in the region have instituted restrictive laws.
“We’re going to see a complete devastation, not just for Floridians but for women in the Southeast who come to Florida for abortion care when a six-week ban goes into effect,” Democratic state Rep. Anna V. Eskamani, who previously worked for Planned Parenthood, said on a Tuesday call with reporters. “These are going to be tragic and difficult and painful stories.”
A constitutional amendment on Florida ballots, backed by the group Floridians Protecting Freedom, would guarantee a right to abortion to the point of fetal viability, which is determined by physicians but is usually around 22 to 25 weeks into pregnancy. Constitutional amendments in Florida require a 60 percent supermajority to pass — a higher bar than in many other states.
Recent polling has shown overwhelming opposition in Florida to strict abortion bans. Democrats are eager to tie the six-week ban directly to Trump, a Florida resident, and to GOP Sen. Rick Scott, who is up for reelection in 2024. It is unclear whether opposition to abortion bans — and support for a constitutional amendment — will translate into votes for Democratic candidates.
“Let me be very clear: Donald Trump owns Florida’s abortion ban, and he owns every single thing that happens as a result,” Jasmine Burney-Clark, the Biden campaign’s Florida state director, told reporters Tuesday.
Scott, a former governor who signed numerous abortion restrictions into law while in office, has also sought to distance himself from the six-week ban.
In 2023, when Florida passed the six-week ban that will go into effect next month, Scott said that if he had still been governor, he would have signed the bill into law. But in a Friday radio interview, Scott deflected when asked about his support for the bill, calling himself “pro-baby” and saying: “We’ve got to say we need to have some reasonable limitations.”
When pressed further, Scott said, “I think we need to have a conversation.” When asked again by the Tampa Bay Times on Monday, he declined to give more specifics.
Scott’s Democratic opponent, former Rep. Debbie Mucarsel-Powell, is centering Scott’s anti-abortion record and the threat of a national ban in her campaign.
“I will make it very clear that even if Floridians vote to enshrine access to reproductive health care here in the state constitution, it will mean nothing if Rick Scott gets reelected, goes back to the Senate and then pushes a national abortion ban,” Mucarsel-Powell said in an interview.
“I think that this is going to prove that in Florida, these people that have been hijacking our state do not represent our values,” she said.
Politics reporter Mel Leonor Barclay contributed to this report.
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