Mayes: AZ Supreme Court abortion ban ruling is wrong and should be reconsidered

Arizona Attorney General Kris Mayes joined Democrats and abortion rights advocates for a press briefing at the Arizona Capitol on April 9, 2024, shortly after the Arizona Supreme Court ruled that an 1864 near-total abortion ban is enforceable. Photo by Jerod MacDonald-Evoy | Arizona Mirror

Attorney General Kris Mayes is calling on the Arizona Supreme Court to reconsider its decision to revive a near-total ban on abortions from 1864, saying that the court’s reasoning for doing so is irreparably flawed.

Two weeks ago, the Arizona Supreme Court ruled that a near-total ban on abortions passed more than a century ago when the state was still a territory supersedes a more recent 15-week gestational ban passed in 2022. The 1864 law threatens doctors who provide an abortion for any other reason than to save a woman’s life with a mandatory 2 to 5 year prison sentence. 

The high court delayed the reimplementation of the law for 14 days, and a previous ruling from a lower court in a different case blocking its enforcement until 45 days after the state supreme court was able to issue an opinion means that it isn’t expected to go into effect officially until June 8. 

On Tuesday, Mayes, a staunch reproductive rights advocate who ran on a campaign to protect abortion access, argued in a motion to reconsider that the court’s opinion in the case should be, at minimum, rewritten. The logic underpinning the court’s majority opinion relies on a legally unsound premise that threatens to undermine years of settled case law and conflicts with federal rulings, Mayes wrote to the justices.

In a 4-2 majority opinion, Justice John R. Lopez IV wrote that the 15-week gestational ban doesn’t create any permission or right to an abortion. Instead, the law functioned to restrict abortion to the degree that lawmakers were able to under the protections of Roe v. Wade. But since that ruling was overturned by the U.S. Supreme Court in Dobbs v. Jackson Women’s Health Organization, the 1864 law should be upheld instead. 

Lopez acknowledged that ambiguity exists because the 15-week gestational ban appears to limit abortion up to 15 weeks, in direct conflict with the 1864 law which prohibits virtually all abortions. To resolve that conflict, Lopez and Justices James Beene, Clint Bolick and Kathryn King sought to establish legislative intent via the legislature’s history of anti-abortion stances and a provision added to the law’s underlying bill that explicitly stated the 15-week law doesn’t overrule the near-total ban from 1864. 

What constitutes vagueness? And what should a court consider?

To defend their search for legislative intent elsewhere, the justices first posited that the 15-week gestational ban is vague because its plain text doesn’t explain how it should fit with the 1864 law, creating a conflict that required them to reconcile it with its predecessor. 

But that reasoning is faulty, Mayes said. Simply failing to reference an older law doesn’t automatically make a newer one ambiguous. New laws, Mayes said, don’t have to justify their existence against older laws: That’s the court’s job.

“The Opinion concludes that a statute’s silence regarding its effect on another previously enacted statute suffices to establish ambiguity and thus permits a court to leap to secondary interpretive principles,” wrote Solicitor General Joshua Bendor. “But it will almost always be true that when a court is asked to evaluate an apparent conflict between related laws enacted at different times, the statutes will be silent about their effect on one another — that’s why the court is involved in the first place.” 

And looking for legislative intent anywhere other than in a law’s text flies in the face of decades of jurisprudence, Mayes argued. Many courts, including the Arizona Supreme Court itself, have consistently limited themselves to interpreting laws as they’ve been written. 

“It is not about a ‘cosmic search for legislative intent’ because ‘the words of the statute are the only thing to which the legislature agreed,’” wrote Bendor, citing a different Arizona Supreme Court opinion. 

Apart from undermining the high court’s commitment to strict textual interpretations, its reliance on information other than the 15-week law itself to justify upholding the 1864 near-total ban threatens to throw into question the logic that other judges have long relied on. In other cases, Bendor asked, if two laws conflict with each other, should the judges then be responsible for considering more than the laws before them? 

“The Opinion would seem to encourage courts to engage in far-reaching inquiries to divine legislative intent with much more frequency. Such an ‘open-ended expression of legislative interpretation invites judicial mischief,’” Bendor warned, citing another state Supreme Court ruling.

Instead, Bendor wrote, the justices should have chosen to harmonize the two laws and conclude that the newer law should supersede the former — as the court has done in previous cases involving conflicting laws from different eras. 

What’s in the bill isn’t the law at issue

The high court’s majority opinion heavily relied on a legislative intent clause, called the construction provision, added to the underlying bill of the 15-week gestational ban before it became law. That language was included in the legislation that created the 15-week law, but it is not part of state statute.

Because that clause explicitly stated the gestational ban doesn’t repeal the 1864 law, Lopez and the majority argued that the older law should rule. 

But, Bendor pointed out, construction provisions are not law, and courts have repeatedly held that they shouldn’t have a greater interpretative weight than the text of the law itself — though they can be helpful as supportive evidence to determine a law’s intent. And if a law’s construction provision appears to conflict with the law itself, then the construction provision should be thrown out. 

Bendor argued that the justices incorrectly gave the 15-week law’s statement of intent more weight than the law itself. Instead of taking the 15-week ban at face value and concluding that it does permit elective abortions up to 15 weeks, the high court concluded that the construction provision stating that it doesn’t overturn the 1864 law means that nearly all abortions should be outlawed. 

“The Opinion deemed the non-substantive ‘construction’ statement about what (the underlying bill) purportedly ‘does not’ do to be more important than the admittedly ‘plain terms’ of the codified law,” Bendor wrote. 

Implications for other abortion law, federal court decisions

The court also bolstered its majority opinion by referencing a fetal personhood law passed by the state legislature in 2021 as proof that lawmakers never intended to establish any legal permission for abortions. That law, which states that all of Arizona’s laws and policies should be interpreted as ascribing every right and protection to an “unborn child at every stage of development,” was blocked by a federal judge shortly after it was passed in 2021, while the protections of Roe v. Wade still existed. The judge in the case ruled that it was unconstitutionally vague and violated the due process rights in the U.S. Constitution. While it is still on the books today, it remains blocked. 

Bendor criticized the Arizona Supreme Court justices for using a law that has been deemed too vague to enforce to support their argument. 

“An unclear statute cannot clarify the meaning of other statutes,” Bendor wrote. 

And, by using the fetal personhood law to reinstate the 1864 near-total ban, the high court inappropriately undermines the federal court’s ruling. The judge in that case, by authorizing an injunction against the law, expressly prohibited that it be used to criminalize abortion providers. Using it to uphold the 1864 ban, which includes criminal penalties for doctors, violates that ruling and narrows the reach of the injunction — both of which are actions that the Arizona Supreme Court is not authorized to take. 

“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.

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