The Arizona Supreme Court won’t revisit its conclusion that an 1864 law that outlaws virtually all abortions remains valid.
In a brief order late Friday, the justices refused a bid by Attorney General Kris Mayes to reconsider its ruling that the old law which forbids abortion except to save the life of the mother trumps a more recent statute that allows abortions until the 15th week of pregnancy. There was no reason given.
But there appears to have been no real second thoughts, at least by the four justices who wrote the majority decision: It took them only three days to reject Mayes’ request.
An aide to Mayes said she had no immediate comment.
The request for reconsideration, though, did serve a purpose of sorts: It delayed by two weeks when the state will once again be able to start enforcing the territorial-era law. Now it appears the soonest that can happen appears to be June 25.
That, however, still won’t be soon enough to prevent what Planned Parenthood Arizona says could be a “blackout” in abortion services. Even if the Legislature gives final approval to repealing the old law, the soonest that action could take effect would be sometime in August.
In its original April 9 ruling, the majority rejected arguments by Planned Parenthood that the 2022 law, which allows abortions up to 15 weeks, superseded the old law.
The justices pointed out that the old law never was repealed, even after the U.S. Supreme Court decided in 1973 in Roe v. Wade. that women have a constitutional right to terminate a pregnancy. What that meant, they said, is the state was free to start enforcing it again after the nation’s high court in 2022 overturned Roe.
And even that 15-week law, adopted as a contingency while awaiting U.S. Supreme Court action, spelled out it was not repealing or overriding the old law.
In seeking reconsideration, Joshua Bendor, Mayes’ solicitor general, argued that the justices here never examined how the 2022 law should be reconciled with the old one. That, he said, conflicts with the court’s own principles of how statutes are constructed.
“The court should reconsider its framing of the issue and thus, its ultimate conclusion,” Bendor wrote.
But he said that even if the majority still believes the territorial-era law is valid, the justices should look at the wording of their April 9 ruling.
“Even if this court does not reconsider its ultimate conclusion, it should at a minimum revise certain statements which conflict with this court’s statutory interpretation principles,” Bendor said. Leaving the wording as is – and in a ruling that can be cited as precedent in future cases – “may have troubling consequences for future interpretive disputes.”
Much of what troubles the attorney general is what Bendor said was the court’s decision that it need not reconcile the 15-week law, which he called “unambiguous,” with the older one. That, he said, would have required the justices to try to “harmonize” the two laws to see if there are ways they both could be interpreted as valid.
That’s exactly what the state Court of Appeals did in its ruling last year concluding that the 15-week law was enforceable to the extent it did not conflict with the older law. But Bendor said the Supreme Court didn’t do that.
“The opinion would seem to encourage courts to engage in far-reaching inquiries to divine legislative intent with much more frequency,” he argued. “Such an open-ended expression of legislative interpretation invites judicial mischief.”
Of potentially greater concern, Bendor said, was the decision by the justices to rely on another law to reach the conclusion that legislators never really intended for the 15-week limit to override the old law.
That statute says all Arizona laws must be interpreted to conclude that an unborn child at every stage of development has “all rights, privileges and immunities available to other persons, citizens and residents of this state,” subject only to federal constitutional restrictions and U.S. Supreme Court decisions.
Justice John Lopez, writing for the majority, said that statute “belies the notion that the Legislature intended to create independent statutory authority for elective abortion,” meaning the 15-week law.
The only problem with that, said Bendor, is a federal judge has declared that statute unconstitutionally vague, barring the state from using it when considering the legality of abortion.
“Nothing in Arizona law allows this court to use unconstitutionally unclear text to guide judicial interpretation of other statutes, nor to position itself as a court of higher review regarding federal decisions,” Bendor wrote. “This court may not narrow the scope of a federal court injunction.”
That June 25 date is based on the fact that the normal practice of the Arizona Supreme Court is to issue a formal “mandate” enforcing its orders 14 days after the last ruling. In this case, that would be Friday’s refusal to reconsider its earlier decision.
On top of that, former Attorney General Mark Brnovich had agreed in a separate and still pending case that the state would not enforce the law for at least 45 days after the mandate.
In the meantime, the Attorney General’s Office has said it is researching other legal prospects to keep the old law from once again being enforced. That includes an argument Mayes has made that a ban on abortion violates a provision of the Arizona Constitution which guarantees an individual right to privacy.
