2024
Arizona Supreme Court Upholds Abortion Ban from 1864
In late 2022, Arizona’s Pima County Superior Court ruled that, in the wake of the United States Supreme Court’s decision in Dobbs v. Jackson Women's Health Organization,[1] Arizona could enforce A.R.S. § 13-3603, the state’s 1864 law that effectively banned abortion in the state.[2] The Arizona Court of Appeals quickly overturned the decision, finding in favor of the appellant, Arizona’s Planned Parenthood affiliate.[3] The intermediate appellate court concluded that § 13-3603 only applied to ban abortions performed by non-physicians and that state law (specifically A.R.S. § 36-2322, the state’s 15-week abortion ban, located in Title 36) implicitly granted physicians a right to perform abortions until 15 weeks of pregnancy.[4]
The Arizona Supreme Court soon took up the case. In a 4-2 decision written by Justice Lopez, the court ruled that Title 36 does not create a right to abortion and that, without Roe v. Wade’s federal right to abortion, § 13-3603 was now enforceable.[5] The court began by highlighting that a statute’s plain language controls its meaning and noting that apparently conflicting statutes should be read to preserve one another’s aims.[6] If a statute is ambiguous, however, the court stated that it could use other evidence to interpret it, like its history and purpose.[7] However, the court pointed out that a statute is only ambiguous if “it can be reasonably read in two ways.”[8]
The court then took up Planned Parenthood’s first argument: that § 36-2322 created a right to, or independently authorized, elective abortions until 15 weeks of pregnancy.[9] The court explained that § 36-2322(B) states that “[e]xcept in a medical emergency, a physician may not . . . perform . . . an abortion if the probable gestational age of the unborn human being has been determined to be greater than fifteen weeks.”[10] Planned Parenthood had argued that the statute’s language, particularly its use of “except” and “unless,” implies that it “prohibits abortions except those it allows—that is, it permits a licensed physician to perform abortions in emergency situations and elective abortions if the physician has determined the fetus’s gestational age is fifteen weeks or less and otherwise has complied with Title 36.”[11] The court stated that Planned Parenthood’s interpretation would be correct—but only if § 36-2322 were Arizona’s only abortion statute.[12] But because § 13-3603 was still in effect and essentially banned abortions in the state, the court held that reasonable minds could differ as to whether “except” and “unless” authorize abortions or are simply outlining instances where a physician could be penalized specifically under § 36-2322.[13]
Considering this ambiguity, and because § 36-2322 does not itself state how it affects § 13-3603, the court turned to consider the legislature’s relevant construction provision.[14] The court highlighted that the provision explicitly states that § 36-2322 does not “[c]reate or recognize a right to abortion” or “[r]epeal, by implication or otherwise, [§] 13-3603.”[15] The court also noted that the legislature specifically stated that it did not “intend [§ 36-2322] to make lawful an abortion that is currently unlawful.”[16]
The court also rejected Planned Parenthood’s assertion that the statute simply allows abortion rather than creates a right to it, deeming it simply a semantic difference.[17] And the court similarly found that Planned Parenthood’s reading of the statute as barring repeal of Title 36 was inconsistent with the provision’s plain meaning of barring repeal of other (non-Title 36) abortion laws, as a law stating it could not be repealed would be superfluous.[18] Because § 36-2322 was enacted in a Roe-governed landscape, and because it was an effort to restrict a then-recognized federal right, the court held that it would be wrong to read the law as broadening access to abortion, particularly in light of the relevant construction provision.[19]
The court also considered arguments surrounding the public official’s statements on § 36-2322, but it found that, because the statements conflicted with each other, they could not be dispositive.[20] However, the court did find that Arizona’s statute providing that the state’s laws “shall be interpreted and construed to acknowledge, on behalf of an unborn child at every stage of development, all rights, privileges and immunities available to other persons . . . subject only to the Constitution of the United States and decisional interpretations thereof by the United States Supreme Court” offered support to its interpretation of limiting, rather than broadening, access to abortion.[21]
The court then took up Planned Parenthood’s argument that the state’s failure to implement a “trigger” law repealing § 36-2322 if Roe were overturned showed the legislature’s intent to create statutory authority for elective abortions before 15 weeks of pregnancy.[22] The court refuted the argument, pointing out that it hinged on incorrect information about whether Mississippi’s near-total abortion ban included a trigger law.[23] And, because the court does not “infer legislative intent from silence,” the court concluded that the lack of a trigger law could not be dispositive.[24]
Lastly, the court addressed Planned Parenthood’s assertion that the co-existence of § 13-3603 and § 36-2322 would infringe Arizonan physicians’ due process rights by creating conflicting law on penalties for performing abortions.[25] But the court pointed out that the legislature may—and routinely does—ban conduct in multiple laws without infringing on due process rights.[26] Citing Justice Thurgood Marshall’s opinion in United States v. Batchelder,[27] the court held that, as long as the statutes clearly explain the banned conduct and the corresponding punishments, due process notice requirements are satisfied.[28] The court pointed out that the state’s abortion statutes, when read together, clearly state what conduct is illegal: performing any abortion, except one that is necessary to save a woman’s life.[29]
Even though Planned Parenthood urged the court to harmonize § 13-3603 and § 36-2322, the court concluded that a reading of the plain meaning of the statutes and the relevant construction provisions shows that they are already in harmony with one another since the legislature explicitly did not intend to create a right to abortion.[30] The court ended its opinion by stating that it would not “amend a statute judicially [nor] read implausible meaning into express statutory language” given the absence of an abortion right in Arizona jurisprudence.[31] Without Roe, the court finished, § 13-3603 is enforceable with § 36-2322.[32]
Vice Chief Justice Timmer, joined by Chief Justice Brutinel, dissented. They agreed that the Arizona legislature intended—and expressed the intention in plain language—to enforce both § 13-3603 and § 36-2322.[33] However, the justices argued that § 36-2322 should be read as an exception to § 13-3603.[34] The justices stated that the court has a duty to harmonize conflicting statutes and so should apply the “general/specific canon” to the case.[35] This canon, the justices noted, states that “the more recent, specific statute governs over an older, more general statute.”[36] As such, § 13-3603 is still enforceable, the justices explained, but only to the cases not considered by § 36-2322.[37]
[1] 597 U.S. 215 (2022).
[2] Planned Parenthood Ctr. of Tuscon, Inc. v. Brnovich, No. C127867, slip op. at 7 (Pima Cnty. Super. Ct. Sep. 22, 2022).
[3] Planned Parenthood Ariz., Inc. v. Brnovich, 524 P.3d 262, 263 (Ariz. Ct. App. 2022).
[4] Id. at 264.
[5] See generally Planned Parenthood Ariz., Inc. v. Mayes, 545 P.3d 892 (Ariz. 2024).
[6] Id. at 897.
[7] Id..
[8] Id.
[9] Id.
[10] Id. at 898.
[11] Id.
[12] Id. at 898-99.
[13] Id. at 898.
[14] Id. at 899.
[15] Id. (citing 2022 Ariz. Sess. Laws ch. 105 § 2 (2d Reg. Sess.)).
[16] Id. (citing 2022 Ariz. Sess. Laws ch. 105 § 2 (2d Reg. Sess.)).
[17] Id.
[18] Id. at 899-900.
[19] Id. at 900-01.
[20] Id. at 902-03.
[21] Id. at 901 (citing A.R.S. § 1-219(A)).
[22] Id. at 901.
[23] See Miss. Ann. Code § 41-41-45(2).
[24] Planned Parenthood Ariz., Inc., 545 P.3d at 902.
[25] Id. at 903-04.
[26] Id. at 904.
[27] 442 U.S. 114 (1979).
[28] Planned Parenthood Ariz., Inc., 545 P.3d at 905.
[29] Id.
[30] Id. at 903.
[31] Id.
[32] Id. at 903-04.
[33] Id. at (Timmer, J., dissenting).
[34] Id. at 914.
[35] Id.
[36] Id. (citing State v. Jones, 334 P.3d 191, 193 (Ariz. 2014) (quoting UNUM Life Inc. Co. v. Craig, 26 P.3d 510, 516 (2001)).
[37] Id. at 914 (Timmer, J., dissenting). In response, the majority opinion states the dissenting justices improperly focused on whether § 36-2322 was ambiguous, rather than on the matter before the court: whether there was any ambiguity concerning the statute’s effect on § 13-3603, id. at 906. The court explained that the dissent’s reading essentially “repeals and supplants” § 13-3603, id. at 907. The court concluded that the only way that the dissent’s reading would be plausible would be to ignore the statutes’ histories, the legislature’s public policy pronouncements, and the plain language of the relevant construction provisions, id.
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