Arizona’s bizarre abortion decision
The Arizona Supreme Court made headlines last week when it held that a long dormant Civil War era statute banning almost all abortions was still good law in that state. Enacted as part of the so-called Howell Code, long before Arizona achieved statehood, it allowed for abortion only to save the life of the mother, and not in cases of rape or incest.
The court decided that the 1864 law took precedence over a less stringent ban on abortions after the 15th week of pregnancy that became law in 2002. As CBS News notes, “The 2022 ban included exceptions in cases of medical emergencies and restrictions on medication abortion, and it requires an ultrasound before an abortion and parental consent for minors.”
Coming on the heels of Donald Trump’s statement that the legal status of abortion should be left to the states, the Arizona case ignited a firestorm of protest from supporters of reproductive freedom for women, particularly focused on the political consequences of the court’s decision.
"What's happening in Arizona is only possible because Donald Trump overturned Roe v. Wade,” said Jen Cox, senior adviser for President Joe Biden's campaign in Arizona. "It's cruel and it's a direct threat to our health and freedoms."
Chuck Schumer, majority leader of the U.S. Senate, predicted that the decision will resonate in the elections this fall. “The American people,” he observed, “know where the Democrats are, know where the Republicans are and this is going to be a large looming issue in the campaign.”
Arizona Attorney General Kristin Mayes even went so far as to announce that, despite the court decision, she would not enforce the 1864 law. “The decision made by the Arizona Supreme Court today,” Mayes said, “is unconscionable and an affront to freedom. Make no mistake, by effectively striking down a law passed this century and replacing it with one from 160 years ago, the Court has risked the health and lives of Arizonans.”
Mayes went on to say: “Today's decision to reimpose a law from a time when Arizona wasn't a state, the Civil War was raging, and women couldn't even vote will go down in history as a stain on our state. And let me be completely clear, as long as I am Attorney General, no woman or doctor will be prosecuted under this draconian law in this state.”
There is, in fact, good reason to highlight the political fallout of the Arizona Supreme Court decision. As an Associated Press report notes, “61% of Arizona voters in the 2022 midterm elections said abortion should be legal in most or all cases. Just 6% said it should be illegal in all cases.
The report continues, “Two-thirds of midterm voters in Arizona said the Supreme Court’s overturning of Roe v. Wade was an important factor in their vote for that election. About 6 in 10 Arizona voters in that election said they would favor a law guaranteeing access to legal abortion nationwide.”
But the Arizona Supreme Court decision was not just a political bombshell — it was legally bizarre.
Justice John Lopez, who wrote the majority opinion for the Arizona court, argues that the 15-week abortion ban must be read as if it incorporated the provisions of the 1864 law, because the state legislature never repealed that law. That fact creates what he calls “the unusual nature of the statutory interpretation in which we must engage.”
To prove his point, he references what he describes as a “construction provision” in the 2022 legislation. That provision, Lopez says, express the legislature’s “unequivocal intent that in restricting elective abortion to 15 weeks gestation, it did not create, recognize, or expand the right to an abortion nor did it repeal … [the 1864] proscription on elective abortion.”
Lopez insists that “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 2022 legislation is “misinterpreted” to override the 1864 law.
Finally, Lopez states that it is not his job to harmonize the 2022 law and its 1864 predecessor. He said he wants physicians to be “on notice that all abortions, except those necessary to save a woman's life, are illegal … and that additional criminal and regulatory sanctions may apply to abortions performed after 15 weeks gestation.”
Vice Chief Justice Ann Timmer, joined by Chief Justice Robert Brutinel, authored a devastating dissent, taking Lopez to task for rejecting one of the key tasks of judges — namely, harmonizing existing law so as to provide clear guidance to citizens.
They point out that both the 1864 abortion ban and the 2022 law use “conditional words to precisely identify conduct that is lawful and therefore permissible. Specifically, a physician commits a crime only ‘if’ the physician performs an abortion when the fetus has a gestational age greater than 15 weeks ‘except in a medical emergency.’ By default, all other physician performed abortions are permissible and lawful.”
The 2022 statue, they say, is not ambiguous. Its language is clear, and there is no need to consult any other guide to construction.
Timmer and Brutinel compare the operation of the 2022 abortion statute to a law establishing a 35 mile-per-hour speed limit. That law, they say, “does not grant me an affirmative right to drive 35 mph; I simply will not be ticketed for doing so.”
Likewise, they argue, under the 15-week abortion ban, “women do not need an affirmative right to terminate a pregnancy for a physician to perform an abortion either before the 15-week gestation point or to prevent the pregnant woman from suffering serious health complications; The physician simply will not be prosecuted for doing so.”
As they rightly say, there is “no other reasonable interpretation” of the 2022 law.
In the end, whatever one’s position on abortion, we should expect that judges will not treat law as a plaything, to be bent and shaped to achieve some political or moral end. When they treat it that way, all of us are losers.
Austin Sarat (@ljstprof) is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. The views expressed here do not necessarily represent those of Amherst College.