Arizona’s Supreme Court effectively banned all abortions, except to save a woman’s life on April 10, after dusting off an 1864 law still on the books but not enforced for more than a century.
Women won the right to abortion in the United States in 1973, when the US Supreme Court ruled in the historic Roe v Wade case that the right to abortion was generally protected under the Constitution. This decision struck out state-based anti-abortion laws and came on the back of the second wave of the women’s liberation movement and the 1960s and ‘70s radicalisation.
The right to abortion is supported by a big majority of women and their male supporters.
Shockingly, the Supreme Court effectively overturned the Roe v Wade decision 50 years later, in the Dobbs vs Jackson Women's Health Organization case, handing power back to the states to restrict abortion access.
Since then, a fight has occurred at the state level, as far-right, anti-abortion forces in the Republican Party turn to state legislatures and courts to enact bans and restrictions on abortion in face of mass opposition.
The Arizona Supreme Court’s decision should be seen in this light.
Abortion rights activists in Arizona for Abortion Access are collecting more than one million signatures — many more than required — to hold a referendum to enshrine abortion rights in the state constitution. If successful, the referendum will be held during the November election.
Referenda affirming the right to abortion have previously been victorious, including in states with ultra-right-wing Republican legislatures that are spearheading the anti-abortion movement.
A citizens-initiated referendum to guarantee abortion rights was held in Republican-controlled Ohio on November 7 last year, where a ban on abortions after six weeks had been put in place. It was successful and abortion rights were codified in the state’s constitution.
A referendum held in Republican-controlled Kansas, just after Roe v Wade was overturned, to outlaw abortion, was defeated due to voter mobilisation. Abortion rights groups also mobilised to defeat anti-abortion referenda in the Republican-controlled states of Montana and Kentucky that year.
Since the 2022 Supreme Court decision, there is now legal dispute over the enforceability of the 1873 Comstock Act, which banned the trade in or circulation — including by post — of “obscene materials” or “articles of immoral use”. These included “abortifacients” and “contraceptives” and any information about them.
This is significant, because medicines for abortion, such as mifepristone (also known as RU486), can be sent by mail. These are now being targeted by anti-abortion activists and politicians in Republican-controlled legislatures. Women could face criminal action for simply ordering the abortion pill.
Amy Littlefield, abortion access correspondent at The Nation magazine, told Democracy Now! the Arizona decision “dates back to an era where we had widespread regulation of not just abortion, but anything that was considered vice or immoral” and that the anti-abortion movement is attempting to revive the Comstock Act because “they can’t win in the court of public opinion”.
Littlefield spoke about a pro-abortion referendum also planned in Florida in November, “where justices on the conservative Supreme Court in that state seem to be flirting with the idea that personhood for fetuses and embryos is protected under the Florida Constitution”.
Despite this, “the people are going to have their say” in Arizona and Florida.
That anti-abortion forces are turning to such antiquated laws reflects that they are in the minority.
What is required to fight them is the kind of mass action, including in the streets, which led to Roe v Wade and won the right to abortion.
Unfortunately, anger against the anti-abortion forces is being funneled into electoral support for the Democrats in November’s elections. This ignores the history of bipartisan support for abortion bans put in place until Roe v Wade.
When the Republicans under former president Donald Trump captured both houses of Congress, Trump nominated and the Senate ratified three more anti-abortion justices to the US Supreme Court, forming a majority. These justices were all approved with the support of the Democrats.
The popularly initiated referenda to guarantee abortion is an alternative, grassroots electoral avenue of mass action, but it will take mass campaigns to win support to get these referenda on the ballot and win the vote.