People v. Trump and the Abortion Ruling
On Substack and Writing
“Substack is coming soon.” (3/10/2024)
“Define soon, lol.”
I am trying to figure out Substack. Setup offers a logo, and I’m damned if I can figure out to work that. Yes, yes, I can hire someone, but that’s not on my agenda right now. Lots of additional setup issues, so stay tuned.
I have mentioned from time to time that I defer to professional writers if I don’t think I have a fresh perspective or special knowledge. That, and being overcommitted, has limited me. Today, though, I have some random thoughts. Hoping this will be my last post on this platform. (I think my Substack link is: https://substack.com/@markrubinwrites, and I hope my next set of words appear there.)
People v. Trump
The trial in People v. Trump starts on Monday, April 15. The outcome awaits us in weeks, but I think Donald Trump has lost already. Ignore the unrecoverable attorney fees he’s on the hook for. Forget about the lost campaign stops. Focus instead on the fact that Mr. Trump must sit quietly for about six hours every day, for weeks.
Sitting still and quiet for hours on end challenges anyone. Doing so in a trial setting? More difficult, and still more so if you’re the defendant. And if you’re Mr. Trump?
The fact that a jury will decide the case adds to Mr. Trump’s “in the room” predicament. Jury service burdens jurors. No work means no wages for most people. Getting to and from the courthouse takes effort, and for the jury on this case? Oy veh! Jurors expect to have a matter move along, smoothly, so that they can fulfill their civic commitment and recapture their lives. In furtherance of that expectation, judges place the jury on the highest pedestal, which means we can expect a conflictive state because, in People v. Trump, the defendant thinks that pedestal belongs to him.
Maybe Mr. Trump will suck it up and behave as his lawyers want him too. And maybe that picture next to my television screen – the one that depicts a very fit sus domesticus aka a pig midway between a wharf and a water feature – is a photograph of a flying pig.
The Abortion Ruling
Everybody’s talking about the Arizona Supreme Court and the abortion ruling. Among those who chatter about the matter, blame falls mostly on the four-member majority Court. Its harmonization of the 1864 statute – adopted by the First Legislative Assembly, 50 years before Arizona joined the union as its 48th state – and A.R.S. § 36-2321 et seq., which was adopted in 2022, stretches credulity. More on that below.
Seven Justices sit on the Arizona Supreme Court. Six Justices decided this matter, because Justice Bill Montgomery recused himself. (The reason? He posted on Facebook, years ago, that the national Planned Parenthood entity was responsible for “the greatest generational genocide known to man.”) Ordinarily, the Court will call on a sitting judge to fill in. Didn’t happen here.
Because the Court of Appeals reconciled the two statutes in a manner that substantively paid attention to 2022 statute, the abortion opponents needed four of the six Justices to agree with their position. Many thought that would not happen, based on the tenor of the oral argument. It happened!
I have seen only a bit of commentary which focuses on the Arizona legislature as the culprit. Leaving aside one’s views regarding the underlying issue, the R majority in our legislature, along with then Governor Doug Ducey, committed legislative and political malpractice. How? By failing to repeal the 1864 ban on abortions, except to save the mother’s life.
Legislative malpractice? Yes, because it failed to reconcile its new statute and the 158-year-old statute. The anti-choice argument carried the day, but it’s a thin thread. Or, as the dissent states: “the legislature does not ordinarily ‘hide elephants in mouseholes.’” Courts exist, significantly, to reconcile statutes. With some frequency, courts face situations in which complicated statutes require some “smoothing” because conflicts might not be evident when legislatures adopt laws.
Not so here! The statutes offer plain language, and the conflict between them was obvious during the process. (1864 = total ban, but for saving the mother’s life v. 2022 = no abortion after 15 weeks, absent a medical emergency.) So if the 1864 law banned virtually all abortions, why did the legislature adopt the 2002 law? Only one explanation comes to mind. Other states were acting, and our people wanted to play the game. If Dobbs did not command our legislative majority to do SOMETHING, what was the point?
As for political malpractice, the majority got its 15 minutes of fame in 2022. Now, it gets the blowback! I worry greatly about women who need help, now and through the end of the year. Many have no options. However, the abortion ban will likely motivate a huge turnout in November. The mess increases the likelihood that the Arizona Right to Abortion Initiative will pass. That Rubin Gallego moves from the House to the Senate. That Juan Ciscomani and David Schweikert leave the House, as well. And I’m just gonna put it out there: Maybe the Ds flip two or three House and Senate seats, and we have a D-controlled legislature.
I don’t excuse the Court majority for its decision, for the dissent offered the far better approach. I have noted the legislature’s role (along with that of Governor Ducey, who signed the 2022 legislation) because, at least in this instance, the Arizona legislature chose an unnecessary path that guaranteed a thankless role for the Court.