The states’ rights case for determining abortion access — let the people decide — falters on the fact that in many states, the people cannot shape their legislature to their liking. Packed and split into districts designed to preserve Republican control, voters cannot actually dislodge anti-abortion Republican lawmakers. A pro-choice majority may exist, but only as a shadow: present but without substance in government.
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The next day, as if answering a captain’s call to fire from the line, the Republican-led Arizona Supreme Court, in an uncanny coincidence, revived a 160-year-old abortion ban, with no exceptions for either rape or incest.
It does not escape my attention that this law owes its rebirth to an effort by Doug Ducey, then the governor, to expand the Arizona Supreme Court’s membership from five to seven justices.
One of them, Clint Bolick, is a longtime conservative legal activist and the author of “David’s Hammer: The Case for an Activist Judiciary.” He represents a type of judge whom the legal scholars Robert L. Tsai and Mary Ziegler call a “movement jurist,” defined as “someone who is socially embedded in movement-aligned networks outside of the formal legal system and is willing to use a judge’s tools of the trade in the service of a movement’s goals.” (Another Ducey-appointed justice, William G. Montgomery, once said that Planned Parenthood was “responsible for the greatest generational genocide known to man.” He recused himself from this case.)
Anti-abortion activists are also trying to conjure a past, in the form of the long-dormant Comstock Act, that gives government the power to regulate the sexual lives of its citizens.
As Moira Donegan notes in a column for The Guardian, “Comstock has come to stand in, in the right-wing imagination, for a virtuous, hierarchically ordered past that can be restored in a sexually repressive and tyrannically misogynistic future.”
It does not curate a favorable electorate or frantically burrow itself into our counter-majoritarian institutions; it competes for power on an even playing field, assured of its appeal and certain of its ability to win.
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