Extremism in the pursuit of liberty?
Set the Wayback Machine for 1864. The Arizona Territory was newly separated from the New Mexico Territory, part of an effort to keep the land purchased 10 years earlier from Mexico to finish a transcontinental railroad out of the hands of the Confederacy.
It was the land of Geronimo and Cochise — and an antagonistic relationship with both European and Native populations. The Gunfight at the OK Corral was still more than a decade away.
The Wild West. Where men were men. And women?
That’s the context for the 1864 law banning virtually all abortions in Arizona, which did not become a state until 1912. The ban, reinstated by the Arizona Supreme Court, is effective from the moment of conception, except when necessary to save the life of the mother, and it makes no exceptions for rape or incest. Doctors prosecuted under the law could face fines and prison terms of two to five years.
Welcome back to the Wild West.
The 4-2 ruling would probably bring some discomfort to Barry Goldwater, the proud Arizona senator whose declaration on extremism at the 1964 Republican National Convention is widely recognized as an apex of the conservative movement — and the start of a downhill slide that resulted in his wipe out loss to Lyndon Johnson that year.
After all, in 1970, the widely recognized “Conscience of a Conservative” declared:
“I believe a woman has a right to an abortion. That’s a decision that’s up to the pregnant woman, not up to the Pope or some do-gooders or the Religious Right.”
This ruling, coupled with the Alabama Supreme Court decision banning in vitro fertilization, shows that it’s not the pope or do-gooders in charge. It’s the Religious Right. Remember the words of Alabama Chief Justice Tom Parker:
“Human life cannot be wrongfully destroyed without incurring the wrath of a holy God, who views the destruction of His image as an affront to Himself. Even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory.”
Both rulings are obvious follow-ups to the Supreme Court’s 2022 Dobbs decision overturning Roe v. Wade and returning decisions on women’s reproductive health to state legislators and judges.
The Dobbs decision will stand out as the legacy of Justice Samuel Alito, who targeted Roe from earliest days as a lawyer and lied about his view of the case as “settled law” to win confirmation to the bench.
It will also live as one of his greatest misjudgments. In a leaked draft he insisted it will allow:
…“women on both sides of the abortion issue to seek to affect the legislative process.”
Dobbs has indeed affected the legislative — and electoral process. Decisions by male-dominated legislatures and courts have been routinely challenged by women — and men — in numerous statewide referendums. The rights of women to control their own bodies has been an electoral winner in red states as well as blue ones.
Nevertheless, the antediluvian thinking persists. While the Supreme Court is predicted to overrule a decision by a single anti-abortion federal judge in Texas to limit the availability of mifepristone, a key drug in medication abortions, Alito and the conservative majority seem to have another relic in mind to further their crusade.
The Comstock Act of 1873 prohibits the mailing of “obscene, lewd, or lascivious” materials, like pornography, or any article or thing “intended for the prevention of conception or procuring of abortion.” It also prohibits shipping those things by way of express common carriers, meaning services like FedEx or UPS.
Alito and Clarence Thomas repeatedly brought up the law, rejecting the Biden administration’s argument that the law is obsolete — it has not been applied in nearly a century — insisting that Food and Drug Administration officials should have accounted for the law when expanding access to mifepristone by mail in 2021.
“This is a prominent provision. It’s not some obscure subsection of a complicated, obscure law,” Alito said. “Everybody in this field knew about it.”
What field is that, Mr. Justice?
While the Arizona ruling applies only to the 48th state it is definitely in keeping with the vision set out in Dobbs. But the invocation of a 19th Century law sends an ominous message to those of us living in the 21st Century.
A court that has made its position on unfettered gun rights clearly appears to be strapping on its six-shooters and aiming for a new Gunfight at the OK Corral.