PHOENIX — The president’s choice Monday of Brett Kavanaugh for the Supreme Court could mean the ability of Arizona women to terminate a pregnancy may depend on who is elected governor in November.
In picking the conservative federal appellate judge to replace the more centrist Anthony Kennedy, who is retiring, President Trump tilts the philosophical balance of the high court if his nominee is confirmed by the Senate.
Kavanaugh has made no published rulings on whether women have a constitutional right to an abortion, but Trump vowed during the presidential campaign to appoint anti-abortion justices. Abortion-rights advocates are concerned Kavanaugh could provide the crucial fifth vote 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 gubernatorial 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 Democratic contenders have vowed to use their power, if elected, to block any effort to impose new abortion restrictions approved by the Legislature, which is currently Republican-controlled.
“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 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,” Farley 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 books in Arizona. One allows a woman to be imprisoned for up to five years for 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.
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,” the Republican governor said.
But with the governor unavailable for an interview Monday, his press aide Daniel Scarpinato said Ducey “is pro-life, and his record reflects that.”
That record includes signing all abortion restrictions that have reached his desk since he took 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 that 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.
Ducey also 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,” Bennett told Capitol Media Services. “I do not support abortion other than a few exceptions (like) the life of the mother.”
As for rape or incest being exceptions, Bennett said there have 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 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 use whatever devices or medical methods and things to prevent unwanted pregnancy.”