Democrats are teeing up a ballot measure in Arizona that would practically ensure abortion until the moment of birth, after the Arizona Supreme Court held that a new state law regulating abortion after 15 weeks did not repeal an 1864 law that allowed abortion only to save the life of the mother.
In March 2022, lawmakers in Arizona adopted S.B. 1164, now referred to in the state’s law books as § 36-2322. A child in the womb can feel pain by 15 weeks, and unborn children can also be seen via ultrasound sucking their thumbs and waving their hands. The new statute would allow abortions after 15 weeks only under special circumstances. It is a point where polls show most Americans support regulations, support that increases when the law includes exceptions for rape, incest, and protecting the life of the mother.
But Arizona also had a law on the books from 1864 that only allowed abortions to save the life of the mother. The Arizona Supreme Court wrestled with the issue of whether that law was now back in effect after the U.S. Supreme Court overruled its 1973 Roe v. Wade decision in its 2022 decision in Dobbs v. Jackson Women’s Health Organization. As part of that analysis, the Arizona court was determining whether the 2022 law repealed and replaced the 1864 law.
By a 4-2 vote (with one justice recused), the Arizona court held that the newer statute did not repeal the old one.
The Arizona court sided with a county trial court, which held that it would be “procedurally improper” to modify a 1973 injunction blocking the old law after Roe in order to “harmonize laws not in existence when the [1970s lawsuit] was filed.” Rather than a ruling on abortion rights, this new court decision was a ruling on judicial procedure. “Because the legal grounds for the 1973 injunction were overturned by Dobbs, the trial court vacated the judgment in its entirety to allow full enforcement of [the 1864 law].”
As Arizona’s high court explained:
Here, we consider a statute that was never repealed—in fact, it was recodified even after it was enjoined—followed by the enactment of a series of statutes regulating the same subject matter in the wake of Roe, the Supreme Court decision striking down the original statute. Hence, the question presented is different from those arising in the ordinary statutory interpretation context: whether the later statutes “repeal or otherwise limit” the earlier statute. Neither party could identify precedent squarely resolving such an unusual circumstance. Thus, we examine the later-adopted Title 36 statutes to determine whether they repealed or limited [the 1864 statute, referred to as] § 13-3603, or instead merely restricted abortions to the extent possible so long as Roe prevented enforcement of § 13-3603.
Referring to a lower court’s decision, the state supreme court held that:
… the court of appeals misconstrued the legislature’s express intent embodied in S.B. 1164 by holding that the statutory scheme demonstrates that the legislature enacted S.B. 1164 with the design “to restrict—but not to eliminate—elective abortions.” Brnovich, 254 Ariz. at 406 ¶ 16. That was the statute’s effect, but the court of appeals divines a legislative purpose in a vacuum. At the time of S.B. 1164’s passage when Roe was still in effect, the legislature was devoid of authority to ban elective abortions without running afoul of the Supremacy Clause. Indeed, the legislature’s previous attempt to restrict elective abortion after twenty weeks’ gestation was enjoined. See Isaacson v. Horne, 716 F.3d 1213, 1231 (9th Cir. 2013). It is no surprise that the legislature merely intended “to restrict—but not to eliminate—elective abortions.” It could do no more. Further, at that time, abortion up to fifteen weeks’ gestation was already legal in Arizona, so there was no reason for the legislature to codify in statute a right that already existed under federal constitutional law.
The justices went on to reason that:
The legislature’s unwavering and unqualified affirmative maintenance of a statutory ban on elective abortion since 1864 (albeit enjoined since 1973), S.B. 1164’s construction provision that the legislature did not intend to repeal § 13-3603 in passing § 36-2322, and § 1-219(A)’s public policy pronouncement that the rights of the “unborn child” were limited only by the federal Constitution and the Supreme Court’s interpretation of it, effectively constitute a discernible comprehensive trigger provision in the event of Roe’s demise.
The court rejected the abortion-supporters’ position, explaining:
Planned Parenthood contends that, like the court of appeals, we must harmonize §§ 13-3603 and 36-2322 to give effect to each. See, e.g., UNUM Life Ins. Co. of Am. v. Craig, 200 Ariz. 327, 329 ¶ 11 (2001) (“When two statutes appear to conflict, we will attempt to harmonize their language to give effect to each.”). We disagree. Our conclusion that the legislature did not intend to create a privilege secured by law to obtain or perform an abortion obviates the need to harmonize §§ 13-3603 and 36-2322. Harmonization between these laws may be accomplished only by repealing § 13-3603 in contravention of the legislature’s express intent and engaging in untenable statutory interpretation such as excising physicians from the plain meaning of “person” in § 13-3603, defined as “a human being” in A.R.S § 13-105(30). And indeed, despite purporting to harmonize the statutes, the dissent’s treatment of § 13-3603 all but nullifies it. We decline to do so. See Schatz v. Allen Matkins Leck Gamble & Mallory LLP, 198 P.3d 1109, 1120 (Cal. 2009) (“Courts ‘will infer the repeal of a statute only when . . . a subsequent act of the legislature clearly is intended to occupy the entire field covered by a prior enactment.’” (alteration in original) (citation omitted)).
However, the political aftermath of the court’s decision tees up a ballot measure in Arizona that is sharply at odds with what polls show most voters prefer. Democrats are pushing a ballot measure that would amend the Arizona Constitution to essentially make abortion legal up to the moment of birth by providing broad exceptions allowing abortions, including when an abortion provider decides it would be good for the “mental health” of the mother to have an abortion. The amendment would allow even fully grown babies to be aborted long after they acquire the sensory abilities of live infants outside the womb.
Rather than set abortion policy at the 15-week level beyond which President Trump is encouraging states to regulate abortion with exceptions for rape, incest, and the life of the mother, Arizona’s proposed amendment measure supported by President Biden’s allies would guarantee abortion with few meaningful restrictions through all stages of pregnancy.
The case is Planned Parenthood v. Mayes, No. CV-23-0005-PR in the Arizona Supreme Court.
Breitbart News senior legal contributor Ken Klukowski is a lawyer who served in the White House and Justice Department. Follow him on X (formerly Twitter) @kenklukowski.