Critics of the Arizona Supreme Court's Abortion Ruling Seem Confused About What Judges Are Supposed To Do
The case hinged on statutory interpretation, not the merits of the state's 1864 ban.
When the Arizona Supreme Court resurrected a sweeping 19th-century abortion ban on Tuesday, the four justices in the majority did not endorse the policy embodied in that 1864 statute. The issue before the court in Planned Parenthood v. Mayes was whether subsequent legislation—in particular, a 2022 law prohibiting abortion after 15 weeks of gestation—had overridden the 160-year-old ban.
That is not the impression left by critics of the decision. "This ruling is a result of the extreme agenda of Republican elected officials who are committed to ripping away women's freedom," President Joe Biden declared. "This reckless decision from the Arizona Supreme Court will put people in life-threatening situations and force many to flee the state for the care that they need," said Athena Salman, director of Arizona campaigns at Reproductive Freedom for All (formerly NARAL Pro-Choice America). Arizona Attorney General Kris Mayes, a Democrat, called the decision "unconscionable and an affront to freedom."
Misleading characterizations of the decision were not limited to Democrats who favor broad abortion rights. They were also offered by Republicans who support abortion restrictions but think the 1864 ban goes too far.
"I signed the 15-week law as Governor because it is thoughtful conservative policy, and an approach to this very sensitive issue that Arizonans can actually agree on," former Arizona Gov. Doug Ducey said on X (formerly Twitter). "The ruling today is not the outcome I would have preferred, and I call on our elected leaders to heed the will of the people and address this issue with a policy that is workable and reflective of our electorate."
Even Republican senatorial candidate Kari Lake, who as a gubernatorial candidate in 2022 called the 1864 ban "a great law that's already on the books" while condemning abortion as "the ultimate sin," said she was dismayed by the Arizona Supreme Court's decision. "This is a very personal issue that should be determined by each individual state and her people," she said in a statement that she posted on X. "I oppose today's ruling."
Lake urged state legislators and Arizona Gov. Katie Hobbs, the Democrat who defeated her in the 2022 election, to "come up with an immediate common sense solution." She alluded to a ballot initiative that would amend the state constitution to explicitly protect abortion rights: "Ultimately, Arizona voters will make the decision on the ballot come November."
These reactions are what you might expect from pro-choice Democrats and from Republicans who are trying to stake out a moderate position on abortion, either out of sincere conviction or out of fear of the issue's electoral consequences. The 1864 law, which was enacted by the territorial legislature and readopted in 1913 after Arizona became a state, bans virtually all abortions, making an exception only for procedures "necessary" to save a pregnant woman's life. In all other situations, the law, codified as Section 13-3603 of the Arizona Revised Statutes (ARS), prescribes a prison sentence of two to five years for anyone convicted of performing an abortion.
That law is much broader than Arizona's 15-week ban, which was approved as Senate Bill 1164 in March 2022, three months before the U.S. Supreme Court overturned Roe v. Wade. S.B. 1164, codified as Section 36-2322 of the ARS, affected only a small share of Arizona abortions—about 6 percent, judging from federal data.
Contrary to what Democrats like Biden and Republicans like Lake imply, however, the Arizona Supreme Court did not pass judgment on the wisdom or justice of the stricter law, its correspondence with public opinion in Arizona, or even its validity under the state constitution. "This case involves statutory interpretation," Justice John Lopez IV notes at the beginning of the majority opinion. "It does not rest on the justices' morals or public policy views regarding abortion; nor does it rest on § 13-3603's constitutionality, which is not before us."
Although enforcement of the 1864 ban was enjoined while Roe was in force, the law was never repealed. The question raised by this case was whether the pre-Roe law had nevertheless been superseded by S.B. 1164. The majority concluded that the 2022 law "does not create a right to, or otherwise provide independent statutory authority for, an abortion that repeals or restricts § 13-3603, but rather is predicated entirely on the existence of a federal constitutional right to an abortion," which the U.S. Supreme Court repudiated in Dobbs v. Jackson Women's Health Organization.
"Absent the federal constitutional abortion right, and because § 36-2322 does not independently authorize abortion, there is no provision in federal or state law prohibiting § 13-3603's operation," Lopez writes. "Accordingly, § 13-3603 is now enforceable."
Because the court remanded the case "for potential consideration of the remaining constitutional challenges to § 13-3603," however, enforcement will not begin right away. "Abortion providers said they expected to continue performing abortions through May as their lawyers and Democratic lawmakers searched for new legal arguments and additional tactics to delay the ruling," The New York Times notes. Mayes, meanwhile, "promised to mount a legal effort to fight off implementation of the law and said she would not prosecute doctors for providing abortions."
While the consternation provoked by the decision is understandable, that does not mean Lopez and the three justices who joined his opinion were wrong. The Times concedes that "many legal analysts, both liberal and conservative, said there appeared to be a solid legal foundation for Tuesday's ruling," which was "an attempt to apply the State Legislature's own recent decisions on the abortion issue."
Because S.B. 1164 says a physician may not perform an abortion when "the probable gestational age" of the fetus is "greater than fifteen weeks," Planned Parenthood argued, it implicitly allowed abortions prior to that cutoff. But the bill explicitly says it does not "create or recognize a right to abortion" and that it does not "repeal, by implication or otherwise, section 13-3603, Arizona Revised Statutes, or any other applicable state law regulating or restricting abortion."
The court sought to "reconcile the legislature's construction provision, which specifically preserves § 13-3603, and the text of § 36-2322, which is silent on, and ambiguous as to, its effect on § 13-3603." Lopez notes that "the construction provision is part of the bill that legislators have before them and approve, and has the same force of law as codified law."
The construction provision also says "the Legislature does not intend this act to make lawful an abortion that is currently unlawful." That language, Lopez says, "seemingly engenders confusion, but its context and logic instead yield clarity." He explains:
This provision can reasonably bear only one meaning: the legislature did not intend the act to codify an independent statutory right to an elective abortion before fifteen weeks' gestation or otherwise repeal any other abortion laws more restrictive than S.B. 1164. Any other reading is implausible because, at the time of its passage, S.B. 1164 merely sought to restrict a federal constitutional right to abortion that the legislature was powerless to abolish. Under no scenario could the legislature's restriction of a broader abortion right be construed to "make lawful an abortion that is currently unlawful" unless the act was misinterpreted to (1) override § 13-3603, the only provision in Arizona or federal law at the time that made an elective abortion before fifteen weeks' gestation "currently unlawful" or (2) otherwise repeal more restrictive abortion statutes. Thus, the provision must mean that the legislature "d[id] not intend [S.B. 1164] to make lawful an abortion that is currently unlawful [under § 13-3603 or any other statute more restrictive than S.B. 1164]." This is the only interpretation that is internally consistent with, and does not defeat, the remainder of S.B. 1164's construction provision. And it helps that the legislature identified precisely which statute it meant to preserve: § 13-3603.
In a dissent joined by Chief Justice Robert Brutinel, Vice Chief Justice Ann A. Scott Timmer says the majority's reliance on S.B. 1164's construction clause is misguided, because it "provides absolutely no insight on what the legislature meant by any language in the statute" and "is emphatically not part of the statutory text." She also notes that the state legislature "stood pat" after Dobbs: It did not repeal the 15-week ban, "repeal or curtail other abortion-regulating statutes," or "clarify the impact" of Section 13-3603. Instead, Timmer says, it "purposely chose to leave all these statutes fully intact and simultaneously operational."
The pre-Roe ban and the 2022 law, Timmer argues, "can and should be interpreted
harmoniously to permit their joint enforcement until the legislature or the people, through the initiative process, say otherwise. This means physicians should be permitted to lawfully perform abortions before the fifteen-week gestation point or when necessary to preserve the pregnant woman's health."
Timmer suggests that Arizona legislators did not anticipate how far the U.S. Supreme Court would go in Dobbs. "All agree the legislature enacted § 36-2322(B) in hopes the Supreme Court in Dobbs would uphold Mississippi's similar Gestational Age Act," she writes. "But the legislature perhaps got more than it expected when Dobbs overruled Roe. Some, most, or even all legislators in 2022 would have included a trigger clause repealing § 36-2322(B) and other Title 36 laws if they foresaw that Roe would be overruled and the injunction on § 13-3603 lifted. But the legislature did not state that intent in any statute or session law, and we should not speculate about what it would have done."
Reasonable people can disagree about who has the better of this argument. But all of the justices agree that the issue is the merits of dueling statutory interpretations, not the merits of enforcing the 1864 ban.
"The abortion issue implicates morality and public policy concerns, and invariably inspires spirited debate and engenders passionate disagreements among citizens," Lopez writes. "A policy matter of this gravity must ultimately be resolved by our citizens through the legislature or the initiative process. Today, we decline to make this weighty policy decision because such judgments are reserved for our citizens. Instead, we merely follow our limited constitutional role and duty to interpret the law as written."
Although all of the justices were appointed by Republican governors, the Times portrays the court's decision as a product of political manipulation. In a story published on Wednesday, reporters David Chen and Michael Wines explain "How the G.O.P. Molded the Arizona Court That Upheld the Abortion Ban." The subhead notes that Ducey "expanded the court to seven justices," all of whom are "solid conservatives."
When the court "upheld a Civil War-era abortion ban this week," the lead says, "it rejected the argument that the 160-year-old statute had been overtaken by decades of newer laws regulating the procedure, including a recent law banning abortion after the 15th week of pregnancy. But to better understand the court itself, look no further than the year 2016, when Gov. Doug Ducey, a Republican, successfully expanded the court's membership from five to seven justices."
This framing is weird for a couple of reasons. Chen and Wines admit that "many legal analysts, both liberal and conservative," think the ruling has "a solid legal foundation." They cite Daniel Scarpinato, Ducey's former chief of staff, who "said it was clear that the court's ruling this week was based on a close reading of the law, not politics." They quote University of Arizona law professor Barbara Atwood, who says: "I don't see it as an ideology-driven decision; I think what the majority is saying is, 'We're trying to be faithful to what the Arizona Legislature really intended.' They don't care what the Legislature intended in 1864. They care what the Legislature intended in 2022." Chen and Wines also note that Ducey, whose appointments they say led to this outcome, was displeased by the decision, which "presents a political risk to Republicans."
Like the misplaced, result-oriented criticism of the ruling, the story focuses on its policy and political implications instead of its legal reasoning, which Chen and Wines do not elucidate, although they acknowledge that it seems "solid." The story about the decision that the Times published on Tuesday likewise barely scratches the surface of the legal dispute that it resolved. But that is the heart of the case, and ignoring it misconstrues what judges are supposed to do, conflating what the law says with what it should say.