When Justice Samuel Alito wrote the opinion that overruled Roe v. Wade in 2022, eliminating the constitutional right to bodily autonomy that women had relied on for half a century, he assured the public that the court was merely returning the abortion issue to the democratic process, where women are “not without” power. In other words, while Dobbs subjects women to greater state control, at least they still have a hand in political decisions about how states exercise that control.
Since Dobbs, however, opponents of reproductive rights have maneuvered to tie voters’ hands on the subject. Arizona has emerged as the next front in this battle, with voters potentially facing dueling ballot initiatives in the coming election.
Arizona has a 15-week ban on the books, and the state supreme court recently revived a near-total ban from 1864 with no exceptions other than when an abortion is needed to save a patient’s life. While the court has not yet decided whether this total ban comports with the state constitution, and while the legislature might still repeal it, Arizonans face a real danger of that 1864 ban taking effect.
Because Arizona is one of 25 states that allow citizens to change their own laws directly, abortion rights advocates have responded with a ballot initiative, the Arizona Abortion Access Act, that would essentially restore the Roe standard: broad protections until viability, and post-viability exceptions when an abortion is medically necessary. The initiative, in effect, gives the voters a choice between 21st-century and 19th-century pregnancy options.
In other states where abortion rights advocates have proposed similar initiatives, anti-abortion politicians have pulled out all the stops to block them. They’ve tried to ratchet up signature requirements for placing initiatives on the ballot, and sought to disqualify signatures. They’ve tried to enact supermajority requirements. They’ve blocked initiatives on the disingenuous grounds that they’re confusing or overly broad. They’ve slanted ballot text to discourage a favorable vote. They’ve even considered stripping away state court jurisdiction to enforce constitutional protections, or barring abortion-related initiatives altogether. Although none of these efforts have succeeded so far in defeating these initiatives, they’ve disrupted their campaigns.
In Arizona, given that only 9 percent of residents support the total ban currently on the books, it’s no surprise that anti-abortion advocates are looking to thwart the newly proposed pro-choice initiative.
This time, they’re considering a deceptive new tactic. According to leaked slides for a secret strategy presented to the Republican House majority by its general counsel, Linley Wilson, legislators may try “changing the narrative” by adding their own constitutional measure to the ballot. The alternative initiative would advertise itself as “complementary” to the pro-choice measure, when in fact it would eliminate reproductive rights in Arizona.
Legislators would engineer this competing measure to appear above the pro-choice initiative on the November ballot to “dilute” the vote and “pull voters from” that initiative. They would call it something misleading, like “Arizona Abortion Protection Act” or “Protecting Pregnant Women and Safe Abortions Act.”
In fact, Wilson explains, the “most important” provision in this measure would permit the state to enact any ban “rationally related to promoting or preserving life.” That permissive language, which parrots Dobbs, would permit the current total ban to take effect and authorize any future bans.
One advantage of this sweeping approach, the presentation explains, is that it wouldn’t “force” voters to pick a gestational age cutoff for abortion, as though making such judgments were a tiresome chore voters should be happy to hand over to the legislature. Meanwhile, this ballot measure would be written in a way that would bury its language permitting abortion bans under an avalanche of other words imposing incremental restrictions, including some that already exist in federal law.
While it’s unclear whether the legislature will follow this strategy to the letter, it appears to be pursuing some version. That isn’t only deceptive — it perverts the political process to thwart the will of the people and defy the preferences of the majority of voters. It’s antidemocratic.
And reproductive rights aren’t the only issue where Arizona legislators are introducing measures that, if placed on the 2024 ballot, would crowd out citizen-led initiatives. One measure, already passed, would make future initiatives harder to put to voters, and another measure could make it harder to vote — part of a larger campaign around the country to implement more restrictions on voting after the 2020 election as well as a broader push to thwart progressive ballot initiatives.
According to the leaked abortion strategy slides, legislators are also considering a backup plan in the event they fail to prevent the pro-choice initiative from passing. They’d refer more ballot measures for future elections that either would enshrine specific — and intentionally “disguised” — gestational age bans or would otherwise negate the 2024 pro-choice initiative.
Historically, because of gerrymandering and other structural distortions that the Supreme Court is increasingly reluctant to remedy, the legislative process often has not accurately reflected voters’ will, particularly when it comes to abortion. By contrast, ballot initiatives have proven a far more effective tool for protecting abortion access after Dobbs. So far, voters in four states have acted since Dobbs to protect or expand abortion rights, and more are poised to do so in the coming election.
This election is testing the limits of our democracy in so many ways, from voter suppression to widespread disinformation about the accuracy and legitimacy of U.S. elections. In Arizona, as elsewhere, the fight for reproductive freedom is intertwined with the fight for democracy. In Dobbs, the Supreme Court held out the promise that voters would now decide the issue. Increasingly, anti-abortion lawmakers aren’t even pretending to let them.
