Litigation Update: Arizona Supreme Court Opinion in Planned Parenthood v. Mayes / Hazelrigg

Emily Manning: Hello everyone and welcome to this Federalist Society Virtual Event. My name is Emily Manning and I'm Deputy Director of Strategic Partnerships with the Federalist Society. Today we're excited to host a litigation update on the Arizona Supreme Court Opinion in Planned Parenthood v Mayes/Hazelrigg. We're joined today by The Honorable James D. Smith and our moderator for today is The Honorable Jennifer Perkins of the Arizona Court of Appeals Division One. Judge Perkins began service on October 30th, 2017. At the time of her appointment by Governor Douglas Ducey, Judge Perkins was Assistant Solicitor General for the state of Arizona. After our speakers give their opening remarks, we will turn to you, the audience, for questions. If you have a question, please enter into the Q&A function at the bottom of your Zoom window and we'll do our best to answer as many as we can. Finally, I'll note that as always, all expressions of opinion today are those of our guest speakers, not the Federalist Society. With that, thank you for joining us today and Judge Perkins, the floor is yours.

 

Hon. Jennifer Perkins: Thank you, Emily. And thank you to the Federalist Society for hosting this today. And in particular, thank you to Mr. Smith for his time spent, both in preparation and today, to aid us all in understanding this case. You can access his complete and impressive biography from the webinar event page and I encourage you to do so. I would just like to highlight James' experience as a superior court judge here in Arizona. His seven years on the Maricopa County bench required him, as a routine matter, to interpret and apply Arizona Supreme Court opinions often on complicated and controversial topics like the one we confront today. I am particularly thankful that we have this opportunity because, to be honest, I've been a little concerned about reactions to this opinion and I'm especially thankful for James' willingness to walk us through the relevant history and then through the opinion itself. I think a fair amount of post-decision coverage, whether media, expert, or otherwise has characterized the decision incorrectly or perhaps more charitably, insufficiently. Much coverage used words like "reinstated" or "affirmed" an 1864 law. To suggest that the majority of our Supreme Court reached back into history, pulled out a 150-year-old law approved of the policy in that law, and thus imposed it on the people of Arizona, is simply inaccurate. I look forward to James' help in understanding what the court here did and what it did not do. I'm going to turn over the floor to James for his presentation. After that, as Emily noted and time permitting, we will take audience questions. So if you would like to ask a question, you must do so through the Q&A function here in Zoom, we will focus on questions that relate to the decision itself. This is not a policymaking webinar and we are not here to discuss the advantages or disadvantages of particular policies. This is also not the right forum for political prognostication. I will note there are plenty of forums available for such things. With those guardrails in mind, James, the floor is yours.

 

Hon. James D. Smith: Thank you, Judge Perkins, and thank you everybody for joining us. Good morning or afternoon depending on where you are. One, let me apologize upfront. I'm still getting over an upper respiratory issue, so I may clear my throat a little more frequently than I'd like. I apologize. I know that can be distracting. I'm going to dive in momentarily. I've got some slides to show you to help us understand this decision, but also how it came before the Arizona Supreme Court. And just to echo something that Judge Perkins said, I mean her two-minute introduction there was perfect. We are not here to talk about the policy of what's right or wrong, and then just from my personal standpoint, it was really surprising and disappointing to see so much of the reaction to the opinion, when from a lawyer's perspective, it was judges doing what judges do and hopefully maybe through today's conversation we can all get on the same page about what it is we expect judges to do and not do.

So with that, I'm gonna share my screen and get us to this presentation that I have created, and start talking about how we got here and what the Arizona Supreme Court had to do when it was ruling on this issue. So to begin, we need to figure out what pre-statehood abortion law was like in Arizona because that's part of what landed before the Arizona Supreme Court leading to its opinion earlier this year. So Arizona was cleaved off from the New Mexico territory in 1863, and that meant Arizona needed to have its own territorial laws. So we had what was called the Howell Code enacted in 1864. And part of that code included what we're gonna call throughout today, "the 1864 law", which criminalized abortion except to save the mother's life, and it included a penalty of up to five years in prison.

 

Still before Arizona became a state, in 1901, the territorial legislature enacted another law that prohibited advertising for abortion services. So there was a lot of legislation about abortion even before we became a state in 1912. So now we get to abortion laws in Arizona from statehood in 1912 to Roe v. Wade in 1973. So one of the interesting things is that our legislature, of course, reified the 1864 law. Not surprisingly, because once we became a state, we wanted to get the codes on the books as a state. I did also look for any instances I could find of the abortion prohibition being enforced. Of course, the record-keeping isn't as robust as it is now, but I did find this one instance of Velma Morris being convicted in 1950 for providing an abortion to a 17-year-old girl in Phoenix. So the law was still on the books and at least we know in one instance it was enforced and a trial occurred where that woman was convicted.

 

Then in 1962, a challenge to that 1901 law that prohibited abortion advertising came about. The Arizona Supreme Court upheld that law and found it was constitutional, but in this era of the sixties and seventies, there were a lot of challenges to these types of laws. So we also had some litigation that began in 1971. There was an attack on what we're calling the 1864 law that prohibited abortion except to save the life of the mother. So the trial court in that case found the law was unconstitutional and then the case went to the Arizona Court of Appeals and in 1973, the Arizona Court of Appeals found that the law was constitutional. So that two-to-one decision overturned the trial court's decision. But that was three weeks before Roe. So then Roe was released shortly after, and as you can imagine, there was an immediate request for rehearing and as the Arizona Court of Appeals obviously had to do, it concluded the US Supreme Court opinion binds us under Roe. The 1864 law is unconstitutional, so we will now affirm the lower court's injunction that we had just reversed a few weeks ago. So the effect was, in 1973, from litigation that began in 1971, the 1864 law was enjoined and everywhere across the country was now under this paradigm of Roe v. Wade. Now we're moving on to what happened from 1973 to 2022.

 

So we still have that injunction in place. The 1864 law is enjoined from that 1971 litigation, but let's consider what the Arizona legislature did after them. So in 1977, the legislature recodified that 1864 law. So we know the law has been enjoined. We know it absolutely was not enforceable under Roe v. Wade, but the legislature four years later still recodified it. Now through these points we're going to run through, you'll see some asterisks. One asterisk means that the law that was passed - or in this instance, re-codified - was put in Title 13 of criminal provisions, but a lot of them were put in Title 36, which is about public safety and health. Those have two asterisks. What we're going to see as we go through today's presentation is that kind of odd situation of a lot of abortion laws being put in Title 36 and some of them being in Title 13 which made this case a little more difficult and unique. So in 1983, the legislature banned using fetal tissue from abortions. In 1999, it required some registration requirements and imposed new regulations on clinics providing abortions. In 2000, there's a law passed. That said abortion providers need to provide an ultrasound to the Department of Health Services before performing the abortion. In 2009, there was a ban on partial-birth abortion, and that went into Title 13 of the criminal statute. There was also a provision that prohibited insurance for government employees from being used to pay for abortions. In 2012, there was a ban on abortion after 20 weeks that went into Title 36. In 2021, we had what's called the Fetal Personhood Bill, and it also prohibited abortion for genetic abnormalities and the child's sex or race as well.

 

Those went into Title 13. By no means is this list comprehensive. There was a lot of legislation from Roe v. Wade in 1973 until 2022 addressing abortion in Arizona. But these selections give you some flavor of what the legislature was doing After the 1864 law was enjoined and after Roe v. Wade (inaudible). There was a lot of activity, to say the least. So now we get up to 2021 and we wanna figure out what's going on on the national stage because that really informs what our legislature did in 2022. So on May 17th, 2021, the US Supreme Court granted cert in Dobbs. So Dobbs was the Mississippi law, a 15-week abortion prohibition law, and a challenge to that under Roe v. Wade. And many folks viewed it as a vehicle to get Roe v. Wade back to the US Supreme Court, either to challenge it in total or to see if it could be paired back some. So folks knew that was kind of coming with Dobbs. Then on December 1st, after all the briefing of course, oral arguments for Dobbs occurred, and that was a pretty significant event.

 

This just gives you an idea of how some folks reacted to that oral argument in Dobbs. So Roger Severino is what you would consider more of a pro-life person. Jeffrey Toobin is more of a pro-choice person. I picked these two because I think they really encapsulate how a lot of people across the spectrum reacted to the Dobbs argument. That is they thought there might be a majority willing to overrule Roe v. Wade and that probably informed what our legislature did in 2022. But again, regardless of where you are on this issue, it seemed like folks on both sides seemed to react similarly to that oral argument - not uniformly of course - but there was enough I would say across the spectrum. But people thought it was a real possibility Roe v Wade might be overruled. So now we get to 2022. Our state legislature always begins its session in January.

 

So a little more than a month after that oral argument in Dobbs is when our legislature started its 2022 session and part of what it did was pass what we're going to call in this presentation, "the 2022 law." It prohibits abortion by a physician after the 15-week gestational age, except in a medical emergency. It also imposes some requirements. The physician must perform that type of gestational age testing before performing an abortion, except in the case of a medical emergency. It also has a lot of reporting requirements for physicians. That's not surprising. There are a lot of those throughout Title 36 in Arizona. However, another note is that this 2022 law does end up in Title 36 regulating public health and safety, and not Title 13, the criminal code.

 

And something we're going to come back to a lot is this construction provision in the 2022 law. The construction provision isn't part of the statutory text of course, but it's part of what the legislature had before it and something that goes with the bill as it works its way through both houses of the legislature. And this is something we're going to see both the Arizona Supreme Court's majority and the dissent often pointed to when they were evaluating the case that came before them. So the construction provision tells us it is not creating a right to abortion or altering generally accepted medical standards, and it does not intend to make lawful any abortion that is currently unlawful. So again, we had a lot of statutes addressing abortion regulation, including the 1864 law, still on the books, that criminalizes abortion except to save the mother's life. The construction provision also told us it's not repealing the 1864 law - and I just swapped out the 1864 law for a citation to Title 13 to make it easier for us - or any other applicable state law regulating or restricting abortion. So this construction provision is something that gets a lot of attention as the Supreme Court eventually addresses the issue. So please keep that in mind as we talk about the case throughout this morning and afternoon.

 

I wanted to highlight the timing of the legislation and the Dobbs leak because sometimes people think, "Oh, the Dobbs leak is what prompted this." That really isn't the case. So our governor at the time, Governor Ducey signed the legislation in March and the Dobbs leak didn't occur for several weeks and then the final opinion came out even a few more weeks after that. So the leak didn't play any role in what the legislature and the governor were doing in 2022 regarding this 2022 law. So Dobbs comes out,  Dobbs reverses Roe v. Wade, and that leads to a lot of litigation in Arizona that leads to the Arizona Supreme Court opinion. So you remember earlier I talked about how we had a 1971 lawsuit that resulted in a 1973 Arizona Court of Appeals opinion and after Roe v Wade came out, the Arizona Court of Appeals had its rehearing and agreed yes, we must enjoin the Arizona 1864 law under Roe v. Wade.

 

After Dobbs came out, the then Attorney General Mark Brnovich went back to the trial court to seek relief from that 1973 judgment, the permanent injunction. So we marched back to the trial court to see if the Attorney General could get a Rule 60 relief from judgment based on the fact that Roe versus Wade was reversed and overturned. The trial court in Pima County where that 1971 case started, said it wasn't going to try to harmonize the laws or modify the injunction based on the 2022 law. Of course, that 2022 law that prohibited abortion after 15 weeks gestational age wasn't around in 1971. And of course, the 1971 complaint didn't say anything about trying to harmonize a law that didn't exist. So the trial court concluded it's inappropriate for the trial court to try to do something that's not pleaded and to try to harmonize laws that weren't even in effect at the same time when this litigation began and the permanent injunction/judgment was issued. So the trial court granted the motion for relief from judgment which meant the 1864 law could be enforced. It was now back in play.

 

So not surprising, there's an appeal to the Arizona Court of Appeals down in Tucson. We've got two divisions and the Tucson Division heard this appeal and it issued its opinion in late December of 2022. So unlike the trial court, the Arizona Court of Appeals said we can and should harmonize the 1864 law, the effective complete ban on abortion with the 2022 law - the law that prohibited abortion after 15 weeks accepted a medical emergency. So physicians are permitted to perform abortions as regulated by Title 36 - the 2022 law -regardless of the 1864 law. Physicians who perform abortions in compliance with Title 36 are not subject to prosecution under the 1864 law. So the Arizona Court of Appeals took a different approach than the trial court and said we need to try to harmonize the laws. That's what courts do when we're able to and we - Division Two of the Court of Appeals think we can harmonize them. We can say the 1864 law exists, but the 2022 law allows physicians to perform abortions up to 15 weeks as long as they comply with the other requirements in Title 36.

 

So now we end up at the Arizona Supreme Court, there's briefing, oral argument, a lot of the (inaudible) submit their briefs. Then we finally got our opinion from the Arizona Supreme Court in April of this year. It was a four-two opinion. Justices Lopez, Bolick, Beene, and King were in the majority, Vice Chief Justice Timmer and Chief Justice Brutinel dissented, and Justice Montgomery recused. That's why we had a four-two opinion even though our Supreme Court has seven members. So they didn't add another judge or justice to sit on the case. So let's talk about what the majority included - our four two majority - in this opinion. It was a unique situation, I think there's no other way to put it. Neither party could identify precedents squarely resolving such an unusual circumstance. And that really is true when I think you look through both the descent and the majority. Folks recognized they were working old clinical tabula rasa. Again, part of the uniqueness of the odd situation we found ourselves in is we've got the 1864 law and a handful of other abortion laws in the criminal code. Then we have the 2022 law and a lot of other abortion laws in Title 36 addressing public health and safety. So that created that unusual situation for the Arizona Supreme Court to figure out what are we doing when the later law is (inaudible) than that earlier 1864 law? That's just one of the issues that the court faced.

 

So from the majority's perspective, it really needed to look at this fundamental issue. Is that 2022 law completely repealing the 1864 law - that's the total ban on abortion for the most part - or is it narrower? Is it just acknowledging there's a federal constitutional right to abortion under Roe? And that means that if Roe disappears we need to figure out what to do with that 2022 law. The majority really looked at the construction provision and concluded - that guided its decision in many respects. The construction provision is part of what legislators approve. It's not like the comments of a handful of legislators in the middle of a hearing or from the dates. This is something before the body as it votes on the bill and it has the same force of law as codified law. So it's an important consideration. Thus the majority said the only plausible interpretation of that construction provision that we talked about is that the 2022 law is not codifying a right to abortion and it's not repealing any other more restrictive laws. From the majority's perspective, there really wasn't another way to interpret the construction provision. This was it.

 

But we had other reasons in the majority opinion. One of them is this interpretive statute. So in Title One of the Arizona revised statutes. We have a lot of guidelines about general provisions, interpretive provisions, and things of all nature. One of our interpretive provisions that has existed for a long time is that we should interpret laws to acknowledge the rights, privileges and immediate benefits on behalf of an unborn child at every stage of development subject only to limitations in the US Constitution and the US Supreme Court. So we also have other laws in Title 36 limiting Abortion. We now know Roe v. Wade - that Supreme Court interpretation is invalid or is overruled - the majority said this is yet another touch point that guides us to conclude the 2022 law is not granting a right to an abortion.

 

Next, another issue that got a lot of play was the Mississippi law. So remember Dobbs was addressing this Mississippi 15-week abortion ban and a lot of the Arizona legislation - the 2022 law - drew on what happened in Mississippi. There's a lot of parallel structure in the 2022 Arizona legislation and the Mississippi law that was before the Supreme Court in Dobbs. So the majority said in 2007 in Mississippi that the legislature enacted a trigger provision. Its near-complete ban would take effect if the state attorney general certified Roe had been reversed. Now that was an important consideration. We'll see It was an important consideration for the dissent as well. Then we get to the 15-week law from Mississippi that was before Dobbs. It specified that it's not creating a right or otherwise legalizing abortion. That's more similar to the language we saw in the Arizona 2022 law.

 

So what of the fact that Arizona doesn't have this type of trigger that Mississippi had from 2007? Well, the Arizona Supreme Court majority said we wouldn't expect to see a trigger regarding an 1864 law. After all that was about 130 years before Roe v. Wade. We certainly wouldn't expect anybody to include a trigger provision in an 1864 law or when it was recodified in 1913 after statehood. So we can't really divine some sort of intent to not have what you might call a trigger or have the 1864 law snapped back into place from that silence. It just isn't saying - it's not an apples-apples comparison to look at a Mississippi 2007 law and the 1864 Arizona law. So the majority said we're not going to treat the lack of a trigger provision as being terribly significant.

 

So with that analysis, the majority said we just can't harmonize the 1864 law and the 2022 law, and they disagreed with the Court of Appeals panel with respect to the case. So because the federal constitutional right to abortion that overrode the 1864 law no longer exists, the statute is now enforceable, prospectively prohibiting abortion unless necessary to save a woman's life. So we're not saying some policies are good or bad. What we're saying is we are deciding what the legislature meant to do in 2022. Then the majority kind of at the end gave a summary of its reasoning really addressing the dissent, but if you go into the majority opinion and you look at the last 10 paragraphs or so, you get this nice summary of the reasoning. Title 36 consistently has been used by our legislature to restrict abortion after birth. So again, we're trying to figure out what the legislature was doing in 2022. This is part of what informed the majority, that the legislation consistently used Title 36 to restrict abortion even after the US Supreme Court in 1973 said there is a constitutional right to abortion.

 

Another important factor for the majority was the 1864 laws' codification and maintenance after Roe. So remember in 1977, four years after Roe, the Arizona legislature recodified this 1864 law. The majority said that's significant. It certainly shows that the legislature intends to keep the 1864 law valid. We have that interpretive provision that talks about privileges, rights, and immunities to an unborn child at every stage of development subject only to what the US Constitution and Supreme Court say otherwise. So without Roe in place, this interpretive statute is the guide to what we should conclude the legislation intended in 2022. And then the last point, and it's interesting the majority put this last in its summary, was the construction provision. So when we put all those together, the majority said the only conclusion we can reach is that the legislation in 2022 intended the 1864 law to remain valid if Roe v. Wade was reversed. That's now what happened. So the 1864 law remains valid. It's not that we are deciding we should pluck this out of thin air and impose it on the citizens of Arizona. We're trying to figure out what all these legislative machinations candidly from before statehood, all the way through 2022 mean, and that's what was before the Arizona Supreme Court.

 

So let's talk about the dissent. We had that four-two split between the majority and the dissent. It concluded that the law is not ambiguous. So the 2022 laws are straightforward. It doesn't depend on Roe's continued existence. There's nothing in the text of the statute or any other accompanying interpretive provision that says "This depends on Roe remaining valid" or "If Roe is reversed, we're going to change course". So we don't need to find that the 2022 law created some affirmative right to abortion as well. We can interpret the 2022 law without reaching this conclusion. The law itself is clear. Doctors will be prosecuted only if they perform an abortion after a fixed 15 weeks gestational age except in medical emergencies. That's it. Now, the stop - the speed limit sign is an analogy that dissenters used - a speed limit sign might say if I travel more than 35 miles an hour, I'm subject to ticketing.I'm subject to some sort of penalty from the state. That's not creating some sort of affirmative right to go 30 miles an hour. But we know I'm not going to be prosecuted for exceeding the speed limit if I drive 30 miles an hour.

 

So the dissent said that's the same type of situation we're dealing with here. We don't need to say the 2022 law granted an affirmative right. It's just telling us if you perform an abortion at fewer than 15 weeks gestational age, you won't be prosecuted. So, the dissent concluded we didn't need to find an affirmative right in the 2022 law. The dissent also thought the majority gave too much credence to the construction note. The construction note after all is not the text of the statute. So the dissent said, that's not giving us any guidance or insight about what the legislature intended. We are focusing on the statutory text, not the construction note that accompanied the bill. So all in all, the dissent almost said we don't need to really interpret the construction note. We're focusing on the legislative text of the legislation.

 

So this is one area where perhaps the dissent and majority agreed - that there is a conflict. We need to figure out what to do about the 1864 law and the 2022 law, there is some sort of tension between them. But the dissent said we can harmonize and we must. That's the job of courts - from the dissent's perspective - is to try to harmonize laws rather than to find conflict between them. So the dissent pointed to the general specific canon that we're all familiar with. The specific portion is the 2022 law. If a physician performs an abortion that is 15 weeks or less of gestational age, that position can't be prosecuted under the 1864 law. So that is a specific exception to the otherwise general 1864 law that otherwise generally prohibits abortion except to save the life of the mother.

 

Now this is what I think is the effective summary for the dissenters, getting to the point that it's an unambiguous statute from the dissent's perspective. Physicians can perform abortions up to fifteen weeks and they're not going to be prosecuted. That's the exception. That's how we reconcile the 2022 law with the 1864 law. From the dissent's perspective, there's no misunderstanding. We've carved out an exception to the otherwise general prohibition on abortion for physicians to perform them. Now the dissent also pointed a lot to the Mississippi legislation that I discussed a little while ago that the majority also talked about. The dissent took a different view though, that hey, in 2007 we had this trigger provision in Mississippi. Once the Mississippi Attorney General certified that Roe had been overruled, we knew that the effective ban on abortion in Mississippi was going to snap back into place.

 

We don't have that here. Arizona's legislature didn't have a similar trigger provision and it could have done so. There are plenty of conditional enactments in other Arizona laws where the legislature specifies "this law will only take effect if something happens or something doesn't happen." So if the legislature wanted to do something like that relating to the reversal of Roe, it could have done so. It didn't, and that was significant to the dissent. Likewise, our legislature has a drafting manual and that drafting manual explains how to have conditional enactments. So again, it was significant to the dissent that the legislature chose not to make a conditional enactment and not to use a trigger provision.

 

And the last part of it was that from the dissent's perspective, the majority was really only looking at how the 2022 law affected the 1864 law. But it wasn't looking at how we have a lot of other laws that restrict or limit abortion. And the dissent said that's a flaw because we can interpret the 2022 law as working in conjunction with those other laws that address or restrict abortion. So we shouldn't limit it to whether we're only dealing with the 1864 law, but let's consider whether the other laws - generally found in Title 36 about public health - are also affected and reconcilable with the 2022 law. And the last portion was that the dissent said that interpretive provision, that addresses privileges, rights, and immunities for unborn children at all stages of gestation is only interpreted, it's not the text of the statute and we shouldn't let that interpretive provision control the statute test - the 2022 law's test.

 

So that's how the dissent got to its conclusion - that we can and must reconcile the 2022 law with the 1864 law. And when we do so, we see from the dissent's perspective that the 2022 law is just carving out an exception to what is otherwise generally an outright ban on abortion. So long as physicians are performing abortions up to 15 weeks, then they're not violating any other law. So that's how the dissent would've interpreted and reconciled the two different laws. And I want to emphasize in this last part of the dissent, something that Justice Timmer wrote because it really encapsulates what I think is a key to what we know the Arizona Supreme Court was dealing with. And it's worth reading in full: "The majority's opinion today will undoubtedly be derided by many as result-oriented or a reflection of individual justice's ideology. My dissenting opinion will probably spark similar criticism. That is the cross born by all judges in controversial social-issue cases like this one. But nothing is further from the truth. In upholding our oaths to follow the laws of this state, we simply disagree - vehemently - about what those laws mean."

 

And I wish more people on both sides of the debate really took to heart what Vice Chief Justice Timmer wrote in paragraph 108 of the dissent. Even Justice Timmer knew that the justices were going to face some blowback from this, and she wanted to make clear that she didn't view her colleagues' majority opinion as a result-oriented or ideological one, it was their interpretation of what the legislature was doing in 2022. She disagreed to be sure, as did Chief Justice Brutinel who signed on to the dissent. But it's important to make sure both sides in this opinion are making clear that this is a matter of trying to figure out what the legislature meant in 2022. It's not a group of justices trying to decide what the policy for Arizona should be and they are colleagues, they can vehemently disagree, but they all recognize what the job is.

 

So let's talk a little bit about what's happened since the Arizona Supreme Court's opinion. The legislature voted to repeal the 1864 law. So it was a fairly close vote in both houses of our legislature. Governor Hobbs signed that bill - that repeal - on May 2nd. Now, under the way our constitution is structured, that repeal isn't effective until 90 days after the session ends. The session doesn't have a firm end date. It really depends on when the legislature declares itself to be (inaudible). Usually, it's in September or October, typically September, much more often than October. But it's not uncommon to go into October. Sowe know that this repeal won't be effective until sometime in September or October under its terms. Now in the Arizona Supreme Court, the parties were still trying to figure out when the 1864 law would go back into effect, if ever. Typically, an appellate court is going to issue a mandate at some point.

 

Just yesterday, the Arizona Supreme Court ruled on various requests about when to issue the mandate, whether to stay the mandate, and whether the 1864 law should go back into effect before this legislation kicks in. So yesterday, the Arizona Supreme Court issued an order staying the mandate in this decision until August 12th, 2024. That means that the 1864 law's enforcement is still stayed. Now, as you can see, if we're really dealing with the September effective date, you might have a little gap there. What the Arizona Attorney General has said, however, there is an order stipulated in place in some federal litigation to address significant abortion laws. And based on that stipulation and order, the Attorney General says that the 1864 law couldn't be enforced until September 26th, 2024. According to the Attorney General, the stipulation and order in the federal court prohibits enforcing the 1864 law before then.

 

So if that really is true, and I have to confess I didn't dive into the docket on Pacer in the federal case to interpret that order, but assuming the Attorney General has described it correctly, then it's a really good chance that the 90 day period will have run before we get to September 26th. And this repeal will be in effect. So it probably isn't going to leave any window of time that the 1864 law could be enforced. And of course, if the Attorney General files a cert petition with the US Supreme Court, that delays issuing the mandate as well. The Attorney General, I believe, has not indicated whether she's made a decision yet about filing a cert petition for the US Supreme Court. Another post-opinion development is there is an initiative circulating right now in Arizona that would create a constitutional right to abortion up to viability effectively putting the strictures of Roe v. Wade into the Arizona constitution.

 

About six weeks ago, the initiative supporters said they had more than 500,000 signatures. They will need 383,923 for that matter to get on the ballot. You always want more if you're circulating a petition because a lot of your signatures will be invalid. So they're continuing to gather signatures, but if those numbers are accurate, there's a pretty good chance that initiative will be on the ballot. Then we also know the legislature is contemplating some referenda. The referenda would address abortion rights, can we put other restrictions on abortion, things of that nature. I don't think any of those have really progressed too far in the legislature, but that doesn't mean a whole lot. They can do a lot of activity pretty quickly if they want. So those referenda might end up as well. And then just some citations for everybody, if you want to find the 1864 law, the 2022 law, the trial court decision, the Court of Appeals opinion, and the Arizona Supreme Court opinion.

 

So if you wanna find those and look them up yourself, here are those sources and sites, just the statutory texts for both the 1864 law and the 2022 law. And then one final point I wanted to leave us with is - I want to thank you for listening and allowing us to be here - is Justice Scalia's quote that he's given in a variety of places and I heard him once in Phoenix, he gave a similar quote: "If you're going to be a good and faithful judge, you have to resign yourself to the fact that you're not always going to like the conclusions you reach. If you like them all the time, you're probably doing something wrong." And that's really something that all judges face. You want to interpret the law correctly.. You're not trying to make law and sometimes you're going to dislike the outcomes you reach. You do your best to reach the correct outcome as you see it. And I don't know that any Arizona Supreme Court Justice believes this one way or the other about this decision we've discussed today. Let me make that clear. But I think it's important - especially for us lawyers - to let our friends know that judges are making decisions that they might not agree with all the time. That's not their job to be super legislators. So thank you all. Thank you Judge Perkins for giving me this opportunity. Thank you to the Federal Society, and now I'll turn it back to Judge Perkins.

 

Hon. Jennifer Perkins: Thank you, James. That was very helpful. We've got a couple of questions in the pipeline, one of which dovetails was something I was gonna touch on just to sort of kick things off, the question submitted is, when the discussion becomes academic, if the legislature repealed the 1864 law, as you noted, the legislature has done so and the governor has signed that law. There's still obviously the interesting procedural - interesting from a complete nerd perspective perhaps - but procedural machinations about mandates and gaps and things like that. But I think there's also maybe a broader point to be made about you know, sort of the judicial process, the legislative process, the way our government works together. And I just wonder if you had any thoughts about - you know, obviously you did a lot of work to prepare for this knowing that the effect of the opinion has actually been largely resolved by the legislature's action- and I just wanted to know if you had any comments to make about what this kind of tells us about our judiciary, about the role of the judiciary and about our system of government.

 

Hon. James D. Smith: Absolutely. I think this experience hopefully informs people of how the government should function when we have this type of issue. When there is uncertainty about legislation, whose job is it to fix it? Should it be the elected representatives or should it be the judges? Judges can reconcile, we can use tools of statutory construction, et cetera. But when we do have this just irreconcilable conflict and it truly is a public policy issue that elected representatives in many ways have created, then which branch of government should be the one to remedy it? And as you saw our legislature moved very quickly after this came out, after the opinion was released, a lot of legislators said, we need to move quickly. Some of 'em said, candidly, this was unexpected. We didn't realize we were gonna find ourselves in this position. Others took a different tab, but they argued it, they hashed it out as they should in their debate, and they moved quickly to vote.

 

Similarly, I mean, we saw the same type of thing in Alabama three months ago or so. We had that Alabama IVF decision where a lot of legislators in Alabama said, I didn't realize we were going to hold that IVF embryos came within the wrongful death statute. We want people to continue to be able to have IVF treatment. So they moved very quickly in Alabama to pass legislation to remedy that, and to clarify what earlier legislation had made ambiguous and quite unclear. So yes, I think this situation is what we would hope the branches of government would do. When the judicial branch - whose job is to interpret the law - says "We've interpreted it and this is what you have created, legislature", then the legislature should step in and say, "That's not what we meant", or "We made a mess, we need to fix it", or "That is absolutely what we meant."

 

Hon. Jennifer Perkins: This is a pretty straightforward one and I think it will be a quick answer: Just a point of clarification, was the construction note voted on by the legislature and was it passed simultaneously with the 2022 law?

 

Hon. James D. Smith: So it wasn't voted on separately if that's what the question means. It is part of the bill that the legislature votes on, so they vote on that entire bill with the construction provision. The construction provision isn't separately codified in the Arizona revised statute, but it is part of what the legislature had before it when voting.

 

Hon. Jennifer Perkins: This is an interesting note. I understand the basis for referring to "the 1864 law", but as a legal matter, isn't it more accurate to refer to the 1913 law because that is the first pertinent post-statehood statute? And I'll offer an amendment. Given the reification later, you know, perhaps even the 1977 law?

 

Hon. James D. Smith: You absolutely could refer to it differently. I chose that because it seemed to be what everybody was aware of, that was kind of the publicity, was "It's an 1864 law." It truly was recodified twice - in 1913 and 1977 - and the text really didn't vary much from 1864, so it was just a shorthanded way - and when you look at the majority in descent, they're also referring back to 1864 - so I thought that would be the easiest way for everybody to keep track of what I was referring to.

 

Hon. Jennifer Perkins: And I just - we don't have any more questions, but I have one point that I guess I just wanted to get your thoughts on. There has been - in the wake of this opinion - there is the start of a movement to quote-unquote "vote them out"to vote out two of our Supreme Court justices who participated in the majority. And the explicit basis is "We don't like what they did here." And I guess I just wonder what your thoughts are. You know, you have experienced the judicial retention system here in Arizona, which is not a partisan election with challengers. It is a yes or no vote on our judges that are on the bench. Do you have any thoughts about what the impacts of something like that might be on our system here in Arizona?

 

Hon. James D. Smith: It would be really unfortunate. Whatever side you're on of this issue or other issues. I really would hate for us to become a state where we are treating judges as another branch of elected officials who are either trying to be popular or trying to get what they think is a popular vote. We, Arizona, created this system to try to eliminate those types of considerations in our retention elections. We're hopefully looking at, "Are these people performing the job competently?" "Are they acting as we would expect judges to?" And if we start saying, "Well, gosh, I really prefer a different policy outcome, and those judges concluded that the legislature meant a policy I disagree with, so I'm going to take it out on those judges", we're missing the point of separation of powers, and it's really going to harm us. It's going to become even more difficult to find qualified people who want to take these jobs and then worry, "When a difficult case comes my way, am I going to have to be looking over my shoulder all the time?" And it comes - it truly comes from both sides - so I don't want anybody participating to think this is only a phenomenon that affects one side of the political spectrum. In our largest county - Maricopa County - recently, the Maricopa County Republican Party Executive Committee has voted to censure the Arizona Supreme Court because it doesn't like the Arizona Supreme Court's decisions in a lot of the election challenge cases we have. To me, those are opposite sides of the same coin. People don't like the substantive law, so they want to take it out on the judges, and I just hate for it to get to that point. I've had cases, I've tried cases in jurisdictions where you truly have partisan judges that are elected. It's a much different system and one that I really don't like. So I hope that's not where we head in Arizona. And I know a lot of members of the legal community share that view.

 

Hon. Jennifer Perkins: Well, I mean, it's a pretty good note to finish on with the Federalist Society when you start invoking the separation of powers. So I think that's a good place to stop. Really appreciate your time. Appreciate the time of those who stuck with us through this webinar. And thank you, Emily, for hosting us

 

Emily Manning: On behalf of the Federalist Society, thank you both for joining us for this great discussion today. Thank you also to our audience for joining us. We greatly appreciate your participation. Check out our website fedsoc.org or follow us on all major social media platforms @FedSoc to stay up to date with announcements and upcoming webinars. Thank you once more for tuning in and we are adjourned.