PHOENIX -- The president’s choice of Brett Kavanaugh for the newest new Supreme Court justice Monday could mean the ability of Arizona women to terminate a pregnancy likely depends on who is elected governor in November.
In picking the conservative federal appellate judge to replace more centrist Anthony Kennedy who retired, the president tilts the philosophical balance of the high court. And while Kavanaugh has made no published rulings on whether women have a constitutional right to an abortion, the concern is that he could provide the crucial fifth votes to overturn the historic Roe v. Wade decision that said women have a constitutional right to abortion.
Such a ruling could return the legal landscape to where it was before 1973, where each state gets to decide whether to allow abortion and under what circumstances. And that, in turn, is why who is governor -- and who gets the final say on state laws -- will matter for those on both sides of the abortion debate in Arizona.
At this point in the campaign, the division over abortion rights appears to be breaking down along party lines, potentially making the question of abortion rights an issue in the general election.
All three Democrat contenders have vowed to use their power if elected to block any effort to impose any new restrictions approved by what, even after November, could still remain a Republican-controlled Legislature.
“I would veto any bill that came to my desk banning abortion in Arizona,’’ Kelly Fryer told Capitol Media Services.
Steve Farley, in a separate interview, cited his own record of 12 years in the Legislature of voting against limits on abortion.
“I’ll be standing against any attempt to put government in between a woman and her doctor,’’ he said.
David Garcia made a similar pledge. But he pointed out the issue may not be that simple.
Those pre-1973 laws making abortion illegal are still on the Arizona statute books. One even allows a woman to be imprisoned for up to five years for just seeking an abortion except to save her own life, with no exception for rape or incest.
“If Roe v. Wade is overturned we’ve got to figure out which of those laws are applicable and enforceable,’’ Garcia said.
Cathi Herrod, president of the Center for Arizona Policy, said that would depend on what words the justices use if and when they void Roe v. Wade. Put simply, Herrod said, the high court could rule that any state with an existing ban on abortions is free to enforce it.
But Herrod, whose organization seeks to outlaw legal abortion, said the decision may not be that clear or simple. And she pointed out that Arizona, unlike some states, does not have a “trigger’’ statute, one that would automatically enact -- or reenact -- new restrictions on abortions if Supreme Court gives states that power.
Maricopa County Attorney Bill Montgomery also noted that since 1973 federal judges have struck down various restrictions Arizona lawmakers have tried to enact, like a ban on abortions after 20 weeks of gestation. And he said that could make the wording of any Supreme Court ruling crucial in whether Arizona lawmakers need to revisit the issue if they want to try to reenact such limits.
Incumbent Doug Ducey dodged a direct question last week asking whether he would sign or veto legislation to outlaw all abortions.
“This is very hypothetical,’’ he said.
But with the governor unavailable for an interview Monday, press aide Daniel Scarpinato, said his boss “is pro-life, and his record reflects that.’’
That record includes signing every abortion restriction that reached his desk since taking office in 2015, including requiring women to be asked certain questions before they undergo an abortion, imposing new reporting requirements on abortion providers and clinics, expanding laws which require doctors to use “all available means and medical skills’’ to preserve the life a fetus born alive even if there is no chance it will survive, and limiting the use of RU-486 to terminate a pregnancy by non-surgical means.
And Ducey inked his approval to a measure locking Planned Parenthood out of a program that allows state employees to donate to nonprofit organizations through payroll deductions.
Ken Bennett, his GOP primary foe, touted his own record of supporting abortion restrictions in his eight years in the state Senate.
“I’m definitely pro-life,’’ he told Capitol Media Services. “I do not support abortion other than a few exceptions (like) the life of the mother.’’
And what of rape or incest? Bennett said there has to be curbs to ensure “that they have to be reported and it’s really a valid situation that happened, rather than just an excuse given.’’
Bennett said one key to fewer abortions is fewer unintended pregnancies, which is why he does not favor restrictions on access to contraceptives. That is not just an academic question, as there actually is a law on the books, albeit unenforced, making it a misdemeanor to even publish an advertisement “of any medicine or means for ... prevention of conception.’’
“I think the Catholic faith kind of gets into that,’’ Bennett said. “But I don’t have a problem with women being able to be able to use whatever devices or medical methods and things to prevent unwanted pregnancy.’’
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