Arizona Court of Appeals Temporarily Blocks Old Arizona Abortion Ban

The Hill (Jared Gans) reports:

The Arizona Court of Appeals has temporarily blocked the state's more-than-a-century-old abortion ban [which bans all abortions "unless it is necessary to save [the woman's] life"] from being enforced after a judge had previously ruled it could be….

The abortion ban was originally enacted in the 1860s, before Arizona became a state. The law was in place until 1973, when the Supreme Court's Roe v. Wade decision protected abortion access nationally. The injunction on the ban was put in place following the decision….

Arizona's legislature had passed other less restrictive bans since Roe was decided, including a 15-week ban … [enacted] before the Dobbs ruling.

Planned Parenthood of Arizona had argued that the subsequent laws should supersede the total ban, but the state judge ruled that Roe was the only reason the injunction was in place, so the law could be enforced….

The Court of Appeals' temporary decision (Planned Parenthood Arizona, Inc. v. Brnovich), written by Presiding Judge Peter Eckerstrom, joined by Chief Judge Garye L. Vasquez and Judge Peter Swann, reasoned:

Planned Parenthood Arizona, Inc., has demonstrated a substantial likelihood of success on the merits on its claim that the trial court erred by limiting its analysis of appellee State of Arizona's motion to set aside the Second Amended Declaratory Judgment and Injunction … to the constitutional viability of A.R.S. § 13-3603 [the old statute] in light of Dobbs v. Jackson Women's Health Organization, 142 S. Ct. 2228 (2022), and in refusing to consider the statutes implemented since the imposition of the injunction, including A.R.S. §§ 36-2321 to 36-2326. Arizona courts have a responsibility to attempt to harmonize all of this state's relevant statutes.

The court further concludes the balance of hardships weigh strongly in favor of granting the stay, given the acute need of healthcare providers, prosecuting agencies, and the public for legal clarity as to the application of our criminal laws….

A telephonic scheduling conference shall be conducted before Presiding Judge Peter Eckerstrom on Tuesday, October 11, 2022, at 2:30 p.m., to determine whether this matter should be accelerated and to set a briefing schedule.

Congratulations to D. Andrew Gaona and Kristen Yost (Coppersmith Brockelman PLC) and Diana O. Salgado, Sara MacDougall, Catherine Peyton Humphreville (Planned Parenthood Federation of America), who represent Planned Parenthood Arizona.

Comments

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

This is something I've often wondered about: how do new laws change old laws? Making up my own hypothetical here, suppose you have these laws, oldest to newest:

* No abortions.
* No abortions after 15 weeks.
* Abortions OK for the health of the mother.

That seems to me (IANAL) as now allowing abortions before 15 weeks for any reason, or after 15 weeks for the health of the mother.

Is this how it works in practice? Or so new laws have to specifically mention the laws they change, and if so, what happens with conflicting laws like my example?

I have also read of laws which change some common wording, like "marihuana" to "cannabis", and vaguely remember some of these just listed the general changes, while others listed every single law and its new wording.

[Lee Moore]

I believe the relevant concept is called "implied repeal" which is an interpretive principle designed to smooth out any contradictions between older and newer statutes, by making the later trump the former where the two (or three or four) contradict each other.

Though quite whether this circumstance counts as an actual "contradiction" I don't know.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Thanks -- googled a bit and am pleasantly surprised to find that sometimes the law is *not* a ass 🙂

[Davy C]

Consider the following laws:

* No assaults. (class A misdemeanor)
* No assaults that lead to substantial bodily harm. (class I felony)
* No assaults on police officers. (class H felony)

Surely the second two would not imply a repeal of the first.

And antiabortion laws are complicated because of the effect of Roe v. Wade. The old laws were declared unconstitutional by an outside force, and the legislature quite possibly *wanted* those laws to remain in effect, but then also passed other laws just so *something* would be covered.

[Davy C]

When I actually look at the Arizona laws... there's no conduct that would violate the new law that wouldn't violate the old one, and the new one has a smaller penalty than the old one. It doesn't make sense to have a law making something illegal, and then have a new law that only covers a subset of that activity - the subset considered *more* serious - with a *lesser* penalty, and have both be in effect.

I would therefore reluctantly conclude that the old law has, in this case, been replaced by the new one. (Reluctantly because leaving up old repealed-by-impliction laws makes the law nearly impossible to read. The AZ legislature should explicitly repeal one or the other [or, if they're crazy, make it explicit that they actually do want both], and not leave it to courts to figure out their intent here.)

[MatthewSlyfield]

Except is it isn't the case with the Arizona abortion laws that the subset was considered more serious. Your analysis of the implied repeal issue starts with a false premise.

[Kazinski]

Looks to me like the Arizona legislature changed the law.

And the rule of lenity would prevent any successful criminal prosecutions.

[not guilty]

It looks like this lawsuit originated in 1971, and the original plaintiffs in 1973 were granted an injunction against enforcement of the pre-statehood statutes prohibiting abortion. The instant proceedings arose from the Attorney General's motion in the wake of Dobbs for relief from the 1973 judgment. The trial court vacated the 1973 judgment. https://www.azag.gov/sites/default/files/2022-09/Planned%20Parenthood%20v%20Brnovich%20Ruling.pdf

The Court of Appeals stayed the order vacating the injunction, reasoning that the effect of intervening statutes enacted by the legislature since 1973 should be considered. The appellate court ruling does not address the constitutionality vel non on the merits of any abortion statute, which I surmise will await further proceedings.

[nekit2010g]

Interesting how liberal state judges are suddenly "finding" rights to abortions in their state constitutions conveniently only a few months after SCOTUS ruled that the federal constitution protects no such right...

[not guilty]

That's not surprising. When the federal guaranty was in force, few states found it necessary to litigate whether the state constitution provides independent protection of a right to choose abortion. Now that SCOTUS has abrogated individual liberty, independent state grounds have become more urgent.

[jb]

Interesting that this case has nothing to do with the state constitution yet you're bringing it up to take a swipe at "liberal" judges.

[wreckinball]

Wow terrible article. What law is presently on the books?

[Kazinski]

All of them.

That's what they are arguing about.

[F.D. Wolf]

While not particularly familiar with Arizona courts and procedure, this seems a straightforward case of repeal by implication of the old statute. If a new statute conflicts irreconcilably with an older statute, then, commonsensically, the newer statute controls. Obviously, it is preferable for a legislature to explicitly repeal an old statute when drafting a new one, but, when dealing with 100+ years of statutes, it is easy to overlook one.

[The Margrave of Azilia]

[post deleted]

[JD85]

Thank you for linking the Kennedy article. I missed it the first time around and didn't realize you had posted on it.

[TwelveInchPianist]

Anybody have a link to the original decision? I'm curious about when a change in precedent might merit revisiting a final adjudication on the merits.

[The Margrave of Azilia]

notguilty gave the link above, but may as well repeat it:

https://www.azag.gov/sites/default/files/2022-09/Planned%20Parenthood%20v%20Brnovich%20Ruling.pdf

[ReaderY]

The decision doesnmt make a lot of sense. Even if it was superceded bu other laws, it’s still not wnjoined - that was a constitutional decision. And whether the legislature intended repeal can basically be determined by whether the 15-week rule was passed before Dobbs or after. If before Dobbs, they likely calculated it was the most they would be allowed to do.

[John F. Carr]

If I were arguing the pro-abortion position, I would justify a continued injunction because the law is still unenforceable.

As somebody who doesn't care much, I would also justify it to preserve the status quo. This situation cries out for a declaratory judgment. The law is ambiguous. An authoritative construction may resolve the dispute. We need some time for the courts figure out what laws are in effect.

[ReaderY]

The 15 week ban was passed in March, before Dobbs and in anticipation of it. One could interpret the legislature’s failure to repeal the 1864 law as an intent to get the most they could, given an expectation they were going to get something. If Justice Roberts prevailed, the 15 week ban would go into effect. If Justice Alito prevailed, the total ban would become unenjoined. Either way abortion would become prohibited to the extent permitted by Dobbs as soon as Dobbs, whichever way it went, became law.

There doesn’t seem to be anything particularly contradictory or difficult to understand about that strategy.

[Davy C]

Normally I'd agree. But the contradiction is in the sentences. If you still want a 2-5 year sentence for abortion (which was the old law), then why pass a new law making it *less* than that if the abortion is *after* 15 weeks?

OK, it's not *quite* a contradiction. It's *possible* to have both laws in effect. It just makes no sense.

[MatthewSlyfield]

They might have been concerned that the courts would overturn the higher penalty even on the narrower law.

[The Margrave of Azilia]

Reading the trial court’s decision, it seems to make more sense than I’d originally assumed.

It’s far from clear, based on the text of the various statutes, that the Arizona legislature meant to repeal the 1860s law by implication.

Anyway, Planned Parenthood can always file a new lawsuit based on the statutory argument.

The injunction was based on the premise that the 1860s law violated the 14th Amendment, which it turns out was never true, as the U. S. Supreme Court acknowledges.

Planned Parenthood wants to modify the injunction so as to rewrite the 1860s law in line with “prochoice” conceptions. This is far from being the self-evident thing to do.

“Congratulations to D. Andrew Gaona and Kristen Yost (Coppersmith Brockelman PLC) and Diana O. Salgado, Sara MacDougall, Catherine Peyton Humphreville (Planned Parenthood Federation of America), who represent Planned Parenthood Arizona.”

Congratulations to Reverdy Johnson and Henry S. Geyer, who represented Mr. Sanford.

[Moderation4ever]

I would say that in repealing Roe the six supporting Justices failed to look at the existing laws and the age of the laws. Justice Alito should have addressed this in his opinion. I am not a lawyer and so not sure how one would phrase the opinion. The point is states should not be able to return to laws when scientific medicine was in its infancy. Some laws are timeless others are not. I would suggest abortion restrictions are in the latter.

[The Margrave of Azilia]

"repealing Roe"

It could be repealed if it were a law, but it wasn't. It was a misinterpretation of the law, and the Supreme Court disavowed that misinterpretation, which was the least it could do.

As for the progress of science, it's been in the direction of providing *more* evidence of the humanity of the unborn. The old conception of the early-stage fetus as a homonculus waiting to have life breathed into it, has been overtaken by evidence. And since the 1860s we've been able to observe the fetus while it's living inside the womb.

Scientific medicine has grown up and no longer adheres to exploded doctrines casting doubt on the humanity of the fetus.