Don't blame the Arizona Supreme Court

The court gave the state legislature exactly what it asked for.

On April 9, 2024, the Arizona Supreme Court held that an Arizona law from 1864 that bans all abortion except to save the mother’s life is enforceable. Under this law, women who are the victims of rape cannot get an abortion at any point during pregnancy, even if continuing the pregnancy would cause permanent physical and mental harm.

Democratic political officials in Arizona swiftly condemned the Arizona Supreme Court’s decision, and some Republican political officials did too. For example, Republican Congressman Juan Ciscomani referred to the decision as “a disaster for women and providers.” One narrative that has emerged is that the Arizona Supreme Court is an ultra-conservative court that twisted the law to impose its pro-life views on the Arizonan people. Even some Republicans have criticized the court. Republican Congressman David Schweikert declared: “I do not support today’s ruling from the AZ Supreme Court. This issue should be decided by Arizonans, not legislated from the bench.”

I agree that the current situation in Arizona is terrible. But in my view, the attacks on the Arizona Supreme Court are misguided. The Arizona Supreme Court’s decision is well-written and logical. The issue is by no means clear-cut—the dissent makes some strong points as well. But neither the majority nor the dissent can be accused of partisan hackery here.

So whose fault is this? Answer: it is the fault of the politicians who occupied the political branches of Arizona government in 2022. That year, the legislature enacted, and the governor signed, a 15-week abortion ban that was deliberately engineered to ensure that the 1864 law would remain enforceable if Roe were overruled. The Arizona Supreme Court cannot be faulted for doing exactly what the legislature asked it to do. The politicians who supported the 2022 legislation and now claim to be disappointed or surprised by the Arizona Supreme Court’s decision are not credible. This outcome was a feature, not a bug, of the 2022 legislation.

The result of the Arizona Supreme Court’s decision is that Arizonans are stuck, at least for now, with an extremely harsh law that is almost certainly opposed by a supermajority of Arizona citizens. This outcome has become a recurrent feature of the post-Dobbs world.

(This week’s artworks feature Dall-E’s take on “politicians and judges pointing fingers at each other.”)

I told you it shouldn’t be repealed, I can’t believe it’s not repealed!

In 1864, Arizonans elected the First Legislative Assembly for the Territory of Arizona. Only white males were eligible to vote. The legislature promptly banned all abortions, except as necessary to save a woman’s life.

In 1901, the territorial government divided this law into two laws, one imposing criminal penalties on pregnant women and the other imposing criminal penalties on providers. In 1913, after Arizona became a state, these provisions were adopted into state law.

The Supreme Court decided Roe v. Wade in 1973. Soon thereafter, an Arizona court held that the 1864 law was unconstitutional under Roe and enjoined it. However, the law was never formally repealed by the state legislature. It remained on the books, but ineffective by virtue of the injunction.

Fast forward to 2022, when Dobbs was pending in the Supreme Court. The specific issue in Dobbs was whether Mississippi’s 15-week ban was constitutional. The Republican-controlled Arizona legislature enacted, and Governor Ducey signed, a 15-week ban similar to Mississippi’s 15-week ban.

Dobbs then came down. The Supreme Court held that … you know what it held. After Dobbs, the Attorney General at the time, Mark Brnovich, asked the Arizona court that had enjoined the 1864 law 50 years earlier to lift the injunction. Planned Parenthood opposed. The case reached the Arizona Supreme Court (I’ll skip past some procedural complexity along the way).

The dispute in the Arizona Supreme Court turned on the relationship between the 1864 law and the 2022 law. Here’s what the 1864 law, in its current form, says:

A person who provides, supplies or administers to a pregnant woman, or procures such woman to take any medicine, drugs or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless it is necessary to save her life, shall be punished by imprisonment in the state prison for not less than two years nor more than five years.

And here’s what the 2022 law says:

Except in a medical emergency, a physician may not perform, induce or attempt to perform or induce an abortion unless the physician or the referring physician has first made a determination of the probable gestational age of the unborn human being and documented that gestational age in the maternal patient’s chart and, if required, in a report required to be filed with the department . . . .

Except in a medical emergency, a physician may not intentionally or knowingly perform, induce or attempt to perform or induce an abortion if the probable gestational age of the unborn human being has been determined to be greater than fifteen weeks.

There’s also a Rule of Construction in the 2022 law that says … well, I’ll get to that a bit later.

The question before the Arizona Supreme Court was whether the 2022 law narrowed the scope of the 1864 law.

Planned Parenthood argued that the exceptions in the 2022 law displaced the blanket prohibition in the 1864 law. So, in 2022, the legislature banned abortion “if the probable gestational age of the unborn human being has been determined to be greater than fifteen weeks.” According to Planned Parenthood, this reflects the legislature’s view that, if the gestational age is less than fifteen weeks, an abortion isn’t a crime at all—which means that the 1864 law’s ban on abortions before 15 weeks is no longer operative. Similarly, the 2022 ban applies “[e]xcept in a medical emergency”—a broader exception than the exception in the 1864 law, which applies only when necessary to save the mother’s life. Planned Parenthood argued that, under the 2022 law, abortions that are conducted in the event of a medical emergency aren’t a crime under any circumstances.

The contrary argument—advocated by a physician with the disconcerting title of “Guardian ad Litem of unborn child of Plaintiff Jane Roe and all other unborn infants similarly situated”—is that the 1864 law and the 2022 law are two separate and independent criminal laws. The “except in a medical emergency” provision and the 15-week provision limit the scope of the 2022 law, but do not limit the scope of the 1864 law. So if a physician performs an abortion at, say, 10 weeks, he violates the 1864 law, but not the 2022 law. If he performs a non-emergency abortion at, say, 20 weeks, he violates both the 1864 law and the 2022 law.

(This was “clay style,” not sure what is going on with the little guy.)

The latter argument may seem weird at first blush. But, there’s well-established case law holding that a legislature can—if it wants to—enact multiple criminal laws covering the same or closely similar conduct. Indeed, it is quite common for a single act to give rise to multiple criminal charges.

The Supreme Court has even held that there’s no constitutional problem with a legislature enacting two different criminal statutes covering the identical conduct. In United States v. Batchelder, 442 U.S. 114 (1979), the Supreme Court addressed a quirk of the Omnibus Crime Control and Safe Streets Act of 1968: there were two separate provisions that banned convicted felons from carrying firearms, but they had different penalties. The Supreme Court held that “Congress intended to enact two independent gun control statutes, each fully enforceable on its own terms.” The Court rejected the defendant’s argument that there were “serious doubts about the constitutionality of two statutes that provide different penalties for identical conduct,” reasoning: “This Court has long recognized that when an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants … there is no appreciable difference between the discretion a prosecutor exercises when deciding whether to charge under one of two statutes with different elements and the discretion he exercises when choosing one of two statutes with identical elements.”

So the legislature can enact two separate abortion statutes, one of which is broader than the other. Whether it did so is a question of statutory interpretation.

In some cases, if a legislature enacts a broad statute, and then enacts a narrower statute covering similar territory, the reasonable inference is that it repealed or narrowed the broader statute. Suppose the legislature enacts a law saying “No vehicles in the park.” Two years later, it enacts a new law saying: “No vehicles in the park, except for bicycles,” without formally amending or repealing the prior law. It makes sense to interpret the new law as implicitly repealing or at least creating an exception to the prior law. The new law clearly suggests that the legislature doesn’t want to criminalize bicycles in the park. Why would the legislature have wanted to leave intact a separate statute that criminalizes bicycles in the park?

But here, it is entirely logical that a legislator would have wanted to enact the 2022 law while leaving the 1864 law intact. Remember that the 2022 law was enacted before Dobbs. Although the Supreme Court was widely expected to uphold the 15-week ban, it wasn’t yet known whether it would leave Roe and Casey intact, or would instead go all the way and overrule Roe and Casey. Suppose you’re an Arizona legislator who wants to ban all abortion at all stages of pregnancy, even in the case of rape and incest and even when the mother’s health is at risk. The obvious thing to do would be to vote to enact the 15-week ban, while leaving the 1864 law on the books. From your perspective, if the Supreme Court upholds the 15-week ban without overruling Roe and Casey, then maybe the 1864 law stays enjoined, but at least there’s a 15-week ban. And if the Supreme Court goes all the way, then, great—the 1864 law springs back and all abortion is illegal.

OK, so we’ve established that a legislator who wanted to ban all abortions statewide would have had a good reason for voting to enact the 15-week ban while leaving the 1864 law intact. The question is: did the legislature, in fact, do this?

Well, when it enacted the 2022 law, the legislature also enacted a Rule of Construction. To be clear, this is not legislative history—it is a provision of the bill itself, voted on by both houses of the Arizona legislature and signed into law by the Governor. Here’s what it says:

This act does not:

1. Create or recognize a right to abortion or alter generally accepted medical standards. The Legislature does not intend this act to make lawful an abortion that is currently unlawful.

2. Repeal, by implication or otherwise, section 13-3603, Arizona Revised Statutes, or any other applicable state law regulating or restricting abortion.

“Section 13-3603, Arizona Revised Statutes,” is the 1864 law.

So the legislature was not only aware of the 1864 law when it enacted the 2022 law, but it specifically said that the 2022 law wasn’t repealing the 1864 law, by implication or otherwise.

The Arizona Supreme Court held the legislature to its word. The court held that because the legislature specifically said that the 2022 law didn’t repeal the 1864 law, the 2022 law didn’t repeal the 1864 law. In the majority’s view, the 1864 law is still on the books and means the same thing as it did before the 2022 law was enacted.

The dissent would have held that the Rule of Construction couldn’t overcome what it viewed as the unambiguous implication of the 2022 law, which is that abortions prior to 15 weeks, and abortions in the case of a medical emergency, aren’t crimes. It argued that its interpretation was consistent with the Rule of Construction because, under that interpretation, the 1864 law wasn’t repealed; it remained effective, subject to the exceptions in the 2022 law. That’s a reasonable position to take. As I said, there are good arguments on both sides of this debate.

That said, I find it hard to fault the Arizona Supreme Court majority for holding that the 1864 law remained unaltered by the 2022 law, given that the legislature went out of its way to say that the 1864 law wasn’t repealed. The court did not, contra Congressman Schweikert, legislate from the bench.

Wait, a politician didn’t tell the truth?

I am struck by the reactions of Republican politicians who supported the 2022 bill.

Governor Ducey, who signed the bill into law, opined that “this is not the outcome I would have preferred.” Really? If he would have “preferred” an outcome saying that the 1864 law was repealed, perhaps he shouldn’t have signed a bill saying the 1864 law wasn’t repealed.

State Senator T.J. Shope, who voted for the bill, stated that the decision “is disappointing to say the least and has ignored our legislative intent.” Really? If the legislature didn’t intend for the 1864 law to stay on the books, why did it go out of its way to say that the 1864 law stayed on the books?

Think about this from a different angle. If the legislature didn’t want the 1864 law to remain on the books when it enacted the 2022 law, it had many different options:

1. It could have said nothing about the 1864 law. I suspect that, in that case, the dissent’s view of the relationship between the 2022 and 1864 laws would have prevailed.

2. It could have repealed the 1864 law. Indeed, as noted above, in 1901, the legislature divided the 1864 law into two laws—one of which applied to women, and one of which applied to providers—and in 2021, the Arizona legislature repealed the law applying to women. It just chose to leave the provision applying to providers on the books.

3. It could have amended the 1864 law to make clear that the exceptions for medical emergencies and abortions prior to 15 weeks applied.

4. It could have stated, in the 2022 law, that those exceptions applied “notwithstanding any other provision of law.”

Instead, the legislature chose the single option that was most likely to result in a holding that the 1864 law wasn’t repealed: It enacted a provision explicitly saying that the 1864 law wasn’t repealed.

I understand that politicians always lie, no one cares about anything anymore, etc. But this seems more craven than usual. Suppose that, after the Supreme Court upheld the Affordable Care Act in 2012, Barack Obama had bashed the Supreme Court, saying that he never intended there to be an individual mandate. That would be weird, right? Of course he intended there to be an individual mandate! To me, Governor Ducey’s reaction is analogous to that.

“We last consider whether overruling Roe and Casey will upend substantial reliance interests.”

(This was “cyberpunk style.” Cool.)

Dobbs held that Roe and Casey created no reliance interests because states are free to enact abortion laws that conform to the views of their citizens. Yet, two years after Dobbs, Arizonans are governed by an abortion law that, I would guess, a super-majority of Arizonans—perhaps 75%—oppose. How did this happen?

The short answer is that people relied on Roe and Casey.

The 1864 law, of course, was enacted long before Roe and Casey. But judging by the reaction to the Arizona Supreme Court’s decision, I strongly doubt it would exist in anything close to its current form were it not for the court order enjoining that law in light of Roe, which eliminated any practical need to take legislative action. That’s why—50 years after the injunction—the 1864 law remains on the books.

Meanwhile, in 2022, the legislature had no difficulty specifying that its law did not “repeal, by implication or otherwise, section 13-3603, Arizona Revised Statutes,” because enacting that language carried no political consequences. 99.9% of Arizonans had no idea what “section 13-3603, Arizona Revised Statutes” even was. Nor did they have a reason to care, given that it had been enjoined for 50 years. Needless to say, whoever it is that drafted that language knew exactly what “section 13-3603, Arizona Revised Statutes” was, and fully understood that the practical effect of this provision was to ensure that all abortions would be banned in Arizona if Roe were later overruled. But because women had a constitutional right to an abortion—or at least they thought they did—there were no political consequences to enacting this obscure “Rule of Construction.” And now that there suddenly are political consequences, the politicians that enacted that language are blaming the judges.

Of course, the 1864 statute can be repealed by the Arizona legislature. But changing the law is hard—it requires majorities of two legislative bodies and the governor’s assent. Inertia is the default, and so the baseline matters.

Consider the reaction of the Senate President and House Speaker (both of whom supported the 15-week ban) to the Arizona Supreme Court’s ruling. Rather than take any action to repeal the law, they said: “We will be closely reviewing the court’s ruling, talking to our members, and listening to our constituents to determine the best course of action for the legislature.” Well, “closely reviewing the court’s ruling” shouldn’t take them very long, given that the court reached the exact outcome they engineered two years ago. As for “talking to our members, and listening to our constituents”—perhaps they should have done that prior to enacting the language that predictably led to the Arizona Supreme Court’s decision.

But they didn’t have to. Because the 1864 law was still subject to an injunction in 2022, no one was paying attention, so they were able to cement the 1864 law into the Arizona Code without controversy. Now that there is a controversy, they are free to do nothing other than “talking to our members, and listening to our constituents.” And if they do nothing, the status quo remains.

In the long run, laws will tend to conform to the views of citizens. Indeed, Arizonans are lucky enough to have a state constitution that authorizes voter-initiated constitutional amendments. They may soon have the opportunity to enact a constitutional amendment that overrides the 1864 and 2022 laws. But several states do not have analogous provisions in their state constitutions, and are therefore stuck, via similar mechanisms as Arizona, with extremely harsh abortion laws enacted prior to Dobbs that a majority of voters oppose but that are extremely difficult to repeal. As Arizona’s experience illustrates, even assuming Dobbs was correct in holding that a woman’s personal reproductive decisions should turn on the views of her fellow citizens, that outcome has not materialized.