Two of the four Arizona Supreme Court justices who recently voted to re-implement an abortion ban from1864 could potentially be removed from their posts by voters this fall.
In a 4-2 decision issued on Tuesday, the state’s highest court said the territorial-era law should be re-implemented, citing the fact that it had not been overturned by any state law in the 160 years since its passage.
“Absent the federal constitutional abortion right, and because (a 15-week abortion law from 2022) does not independently authorize abortion, there is no provision in federal or state law prohibiting (the 1864 law’s) operation,” the justices ruled.
The law restricts nearly all access to abortion, making exceptions only in cases where the life of a pregnant person is at risk.
All four of the justices who voted in favor of the 1864 law being enacted were appointed by Republican governors.
Arizona, like 14 other states in the U.S., allows its governors to appoint justices to its highest court but gives voters the opportunity to vote them out later on. In Arizona, the initial retention vote takes place two years after justices are appointed. If a justice is not voted out, they will face another retention vote every six years; if they are removed, the current governor is allowed to appoint a new person to the state Supreme Court, albeit from a list provided by a statewide judicial commission.
Two justices who sided with the majority in Tuesday’s ruling — Justices Clint Bolick and Kathryn King — are up for retention votes this fall. Both justices were appointed by Republican Gov. Doug Ducey.
Bolick survived his first retention vote six years ago, while this will be the first retention vote for King.
Bolick is married to state Sen. Shawnna Bolick, a far right Republican and election fraud conspiracy theorist who has sponsored anti-transgender legislation in the current legislative session. The state senator is also anti-abortion, although she said in a post after the ruling that she would support repealing the territorial law in favor of a 15-week ban.
Critics of 15-week abortion bans have pointed out that they are still very dangerous, particularly for people who have pregnancy-related health issues beyond that timeframe.
According to Bolts Magazine, it’s rare for retention votes to result in a justice’s removal from the state Supreme Court, with the last such removal happening in 2014. However, the retention votes for these two justices will give Arizona voters — the vast majority of whom support expanding abortion rights — the ability to remove anti-abortion jurists. Given that a constitutional initiative expanding abortion rights to the time of “fetal viability” (generally regarded as 22-25 weeks of a pregnancy) is likely going to be on the ballot as well, it’s probable that these two justices will also become a focal point for abortion advocates in the state.
If the justices fail to win their retention votes, Gov. Katie Hobbs (D) will get to select two new justices to serve, shifting the court’s ideological balance slightly; instead of all seven justices having been appointed by former Republican governors, two of the seven will have been picked by a Democrat.
Behind the scenes, however, Republicans are pushing through a constitutional ballot measure of their own, to amend the state’s highest governing document to change the process of judicial retention altogether. Under that proposal, which is currently stalled in the state legislature but could be revived soon, justices of the state Supreme Court would serve lifetime appointments and never face retention votes except for in limited circumstances, including in cases where a justice has been convicted of a felony offense, convicted of a crime involving fraud or dishonesty, entered into bankruptcy or home foreclosure, or when a judicial commission has determined they do not meet standards to remain a justice.
Although highly unlikely, it’s possible that Arizona Republicans could revive and fast-track this amendment proposal, including it on the state’s primary election ballot in late July in order to stop efforts by pro-abortion groups to remove Bolick and King from their positions — much like how Ohio Republicans tried (and failed) to thwart an abortion initiative in 2023 by placing a question of their own on that year’s primary ballot, prior to an abortion rights initiative that ended up winning in the general election.
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