The Arizona Supreme Court Correctly Interpreted Arizona’s Abortion Statutes
On Tuesday, April 9, 2024, the Arizona Supreme Court held 4–2 that, as a matter of statutory construction, Arizona’s legal code criminalizes all abortions except those necessary to save the life of the pregnant woman, notwithstanding a different section of the state code that prohibits physicians from performing abortions after 15 weeks except as necessary to protect the life or health of the pregnant woman. Planned Parenthood Arizona v. Mayes, No. CV-23–0005-PR (Arizona April 9, 2024). Commentators immediately pilloried this decision, describing it as resurrecting a Civil War era statute from before Arizona was a state and focusing (correctly) on the enormously harmful effects this will have on Arizona women if the legislature and lower courts allow the statute to take effect after the expiration of the short stay the Arizona Court placed on its own decision. Many people howled that the majority was acting in an unreasonable, politicized way based on the majority’s opposition to abortion, implying that the dissent had the much better argument.
While the substantive effects of this decision are terrible — people will die because of this opinion if it goes into effect, and the statute provides no exceptions for the health of the pregnant person or in cases of rape or incest — the majority had the better legal argument. In fact, this case specifically is an easy case. This essay explains why, and why hoping for the Arizona Supreme Court to save them from the clear actions of the Arizona legislature through statutory interpretation is wrong.
Planned Parenthood Arizona Purely Considers Statutory Interpretation
To begin with, Planned Parenthood Arizona concerns statutory interpretation and nothing else. Both the majority and the dissent agree on this point. Majority opinion at 4 (“This case involves statutory interpretation — it does not rest on the justices’ morals or public policy views regarding abortion”); dissent at 47 (“In upholding our oaths to follow the laws of this state, we simply disagree — vehemently —about what those laws mean.”). Both majority and dissent obscure a little bit the role that policy considerations inherently have in statutory interpretation. Judges want to interpret laws to promote what they understand to be good policy, and hardly any judges don’t bring any policy considerations to bear in their statutory construction. Nonetheless, this is fundamentally about interpreting the text of statutes, not about broader principles. In particular, this decision isn’t about whether the Arizona Constitution protects rights to have an abortion under some circumstances — that question was remanded to the trial court for consideration in the first instance. It also isn’t about desuetude, the controversial idea that some old statutes that have not been enforced in many years should be considered unenforceable without new action. While much has been made of the fact that one of the statutes at issue is essentially unchanged since 1864, the statute was clearly readopted by the state legislature and deliberately left intact multiple times. I’m sympathetic to the idea of courts holding that some statutes have fallen into desuetude and must be reenacted to have full force, but this isn’t a circumstance where that would be appropriate.
Instead, this case is entirely about how to reconcile two separate statutes addressing abortion. Section 13–3603, on its face, criminalizes all abortions except those necessary to save the life of a pregnant woman and mandates a prison sentence of two to five years for any “person” who violates it, with no language either excluding or specifically including physicians within its scope. A.R.S. Sec. 13–3603. Section 36–2322 states, in relevant part, that no physician may perform an abortion except in a medical emergency or after determining that the fetus’s gestational age is not greater than 15 weeks. A.R.S. Sec. 36–2322. The question at issue in Planned Parenthood Arizona is how to reconcile those two different provisions related to abortion. The majority argues that they are two separate laws, with separate penalties, one addressed to any abortions and the other specifically criminalizing some abortions performed by physicians, and that there is no inconsistency with applying both fully. Under the majority’s reading, an abortion performed by a physician before 15 weeks would be a criminal act under Sec. 13–3603, and the physician could be charged with that crime, while an abortion performed by a physician after 15 weeks except in a medical emergency would violate both Sec. 13–3603 and Sec. 36–2322 and could be punished under either or both statutes. The dissent argues that instead these should be harmonized by interpreting Sec. 36–2322 as defining the circumstances under which an abortion performed by a physician is illegal, with a necessary conclusion that abortions performed by physicians under other circumstances are legal; Sec. 13–3603, in turn, would govern abortions not performed by physicians. Each opinion marshals authority about how to conduct statutory interpretation in an effort to argue for their construction, and if only the text of the Arizona Revised Statutes were available, either opinion could be defended. Examining how Arizona’s laws ended up with this apparent tension, however, makes clear that the majority has the better argument.
Arizona Legislatures Have Continuously Attempted to Restrict Abortion as Much as Constitutionally Permitted
While Sec. 13–3603 dates back in largely the same form to 1864, I’m going to start in 1973 — the year that Roe v. Wade, 410 U.S. 113 (1973), held that the federal constitution protected a right to elective abortions before viability. At the time of Roe, Sec. 13–211 of the Arizona Revised Statutes criminalized all abortions in Arizona except for abortions performed to save the life of the pregnant woman. State court challenges to Sec. 13–211’s constitutionality were in progress at the time of Roe, and immediately after the Supreme Court’s decision, the Arizona Court of Appeals held that Sec. 13–211 was unconstitutional and enjoined its enforcement. The Arizona Legislature soon responded to the court decisions — not by repealing the enjoined section of law, but by re-codifying Sec. 13–211 as Sec. 13–3603, leaving the language essentially unchanged, in 1977.
This wasn’t a situation where no one was aware of this law or the legislature had simply left it in place as a vestigial statute from years prior — when Sandra Day O’Connor was under consideration for appointment to the Supreme Court, her position as a legislator in the Arizona Senate from 1969–73 raised questions about whether she had supported decriminalizing abortion. She told President Reagan that she couldn’t remember whether she had taken a position — President Reagan had strong reasons to be sympathetic to the idea that someone might not be able to remember an important policy position — although records show that she voted in favor of a bill that would have decriminalized abortion in Arizona in 1970, had it passed. That bill was never adopted.
Subsequent to 1975, the Republican-controlled, pro-life Arizona legislature took a series of additional steps to limit abortion, pushing up against (and in some cases beyond) what the federal courts would permit under Roe and subsequent abortion cases. While Arizona is now a “purple” state, it was historically Democratic until realigning as Republican in 1967. Since 1967, there have been a total of 6 years in which the Democrats had a majority in the state Senate, and an additional 2 years in which the chamber was evenly divided. The Republicans have controlled the House continuously from 1967 to today, though their margins in both houses are currently very narrow. In any event, as the majority opinion notes, the Arizona legislature passed “dozens” of laws regarding abortion, each of which restricted abortion in one way or another. Majority op. at 6.
The most significant of those restrictions was Sec. 36–2322. In early 2022 — during what would turn out to be the last few months before the Supreme Court overturned Roe — the Arizona legislature passed a 15-week restriction on abortion as S.B. 1164. The Senate voted in favor of this bill 16–13, and the House followed with a 31–26 vote. Both were perfect party-line votes, with every “yea” vote from a Republican and every “nay” from a Democrat. Then-Gov. Doug Ducey, also a Republican, signed the bill into law on March 30, 2022.
Approximately three months later, the U.S. Supreme Court decided Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022), and not only upheld Mississippi’s parallel 15-week restriction on abortion, but overturned Roe and fifty years of Constitutional jurisprudence. Dobbs held that the U.S. Constitution did not place any limits on a state’s ability to prohibit or criminalize abortions. The question immediately arose over whether Sec. 13–3603 now banned all abortions (except as necessary to save the life of the pregnant person) within Arizona as it had before Roe, or whether Sec. 36–2322 authorized doctors to perform abortions as long as they complied with the 15-week restriction and other restrictions contained in Title 36.
Based solely on that history, a strong argument exists in favor of construing Sec. 36–2322 as adding additional restrictions on abortion to Sec. 13–3603, now that Roe no longer prevented Sec. 13–3603’s enforcement. It would be strange to conclude that Sec. 36–2322 had carved out an exception to Sec. 13–3603. When passed, it was among the most restrictive abortion laws in the nation, and it is phrased entirely in negative terms — defining when a physician cannot perform an abortion, but never specifying when a physician can (or that a physician can at all), except insofar as exceptions from a prohibition can be taken to be authorizations. Those arguments, however, are not conclusive. Reasonable minds could disagree about how to harmonize those laws if they had only this history to rely on. A much stronger argument emerges from the text of S.B. 1164 itself.
Arizona’s Legislature Specified that S.B. 1164 Did Not Repeal Sec. 13–3603
In addition to the material codified at Sec. 36–2322 et seq., S.B. 1164 also included instructions to courts as to how it was to be interpreted. Notably, this isn’t legislative history — this is an actual enactment, part of the law that the Arizona legislature passed and the Arizona governor signed. That section on “Construction” left no doubt whatsoever as to what S.B. 1164 did with regard to Sec. 13–3603. Because the language is so directly on point and so clear, I quote Sec. 2 of S.B. 1164 in its entirety:
Sec. 2: Construction
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.
It’s hard to be much clearer than that. The Legislature that drafted S.B. 1164 clearly anticipated that its text could be used to suggest that physicians were legally permitted to perform abortions, notwithstanding Sec. 13–3603, and directly stated that the law should not be given that construction.
The dissent ties itself up into knots trying to evade the obvious conclusion. They argue that they aren’t recognizing a “right” to abortion created by S.B. 1164, codified as Sec. 36–2322 — instead, they are simply recognizing that Sec. 36–2322 defines when a physician cannot perform an abortion and thus, by implication, when a physician can — not a “right,” just an absence of a prohibition. Dissent at 35. And they argue that they are not suggesting that Sec. 13–3603 is repealed by S.B. 1164 — S.B. 1164 simply creates a more specific category (abortions by physicians), to which the general law (abortions by any person) does not apply. Id. at 39–41. The dissent also suggests that if the Legislature had wanted to create a regime where Sec. 36–2322 would control unless and until the Supreme Court overturned Roe, at which point Sec. 13–3603 would take over, they could have drafted a trigger provision that would specify that result. Id. at 41–46. No doubt the Legislature could have drafted S.B. 1164 that way, but the purpose of court’s statutory construction is not to circumvent the obvious design and intent of the legislation because the Legislature didn’t use the right magic words. The Legislature clearly stated — in material enacted as part of the law, not merely in legislative history — that Sec. 36–2322 was not intended to make any otherwise illegal abortion legal, and specifically called out Sec. 13–3603 as remaining undisturbed. The idea that because treating Sec. 36–2322 as a more specific case while preserving the general case is not technically a “repeal” does not change the plain fact that the Legislature tried vigorously to prevent precisely the interpretation of Sec. 36–2322 that the dissent attempts to reach.
I understand why the dissent tried to get to its conclusion. While both majority and dissent disclaim a role for policy preferences in statutory interpretation, any judicial decision-making on a debatable issue involves some consideration of policy preferences, even if only implicitly. Judges think about what the consequences are of their actions, and they want to do justice and make the world a better place — though of course they differ radically on what they think would make the world a better place. Section 13–3603 has an extraordinarily broad sweep, not only limiting abortions throughout the entire pregnancy, but also providing only the narrowest of exceptions for the life of the pregnant person. Section 13–3603 provides no exception for pregnancies that would likely inflict grievous, irremediable, permanent injuries on the pregnant person. It provides no exception for pregnancies that are the result of rape or incest. Even for many people who consider themselves pro-life, Section 13–3603 goes much too far. And for people who are pro-choice, of course, it is utterly repugnant. It is no exaggeration to say that people will die because of Section 13–3603.
Were I on the Arizona Supreme Court, would I have convinced myself that I could justify interpreting Section 36–2322 directly contrary to the stated intent of the enacting legislature to prevent a horrible outcome? I don’t know and can’t know. I think not — this interpretation is too obviously incorrect, and I work hard to make my legal conclusions consistent and well-thought through. But faced with the dreadful consequences of this opinion, I can understand why judges would grasp at straws to avoid the obvious.
The Solution to Section 13–3603 is Political
Section 13–3603 is the result of the Arizona Legislature making bad policy choices, and the people of Arizona continuing to elect Republican legislatures despite or because of those bad choices. It’s the outcome of political decisions. The solution, from a statutory perspective, is for the Legislature to repeal Section 13–3603 (or specify that it does not apply to abortions performed by physicians). Currently, the Democratic minority in each of the House and the Senate are trying to pass legislation repealing Section 13–3603, and some Republicans in each house have stated that they also support repeal. Gov. Katie Hobbs, a Democrat, has stated that she would sign a law repealing Section 13–3603. Nonetheless, it is unclear that the Republican majorities will allow a repeal bill to come to a vote — a significant number of the Republican legislators in each house are deeply committed to preserving Section 13–3603. If they refuse to, the only solution is to hold them accountable at the ballot box. If Arizonans don’t want a radical anti-abortion law, they need to elect a legislature that wants to repeal the radical anti-abortion law prior legislatures carefully preserved.
This isn’t a matter of blaming Arizonans for their past votes, or trying to sacrifice the interests of people who need abortions in Arizona to help Democrats win future elections. Rather, it’s a recognition of a basic fact: elections matter. Except for relatively narrow constitutional safeguards, an elected legislature can pass laws to achieve its goals. And when those laws are clear, the role of the courts ought to be to apply them, to the extent consistent with constitutional rights, not to deliberately misconstrue them to frustrate the efforts of the political branches to implement policies that the people elected them to pursue. Where the people of Arizona repeatedly and consistently elected a legislature that said that it wanted to ban abortion in basically as many cases as the Constitution would allow, the courts shouldn’t twist the statutes to prevent that — even if many of the Arizona voters, and some of the Arizona legislators, only voted for those outcomes because they thought, incorrectly, that Roe would remain in force.
The Arizona Supreme Court remanded the case for consideration of other claims, including arguments that Section 13–3603 violates the Arizona Constitution. It’s still possible, albeit unlikely, that the courts will enjoin Section 13–3603. I doubt they will — notwithstanding the Court’s claims otherwise, I would be surprised if any of the four justices in the majority recognized a right to choose under the Arizona Constitution (except, perhaps, in some of the most extreme cases outlawed by Section 13–3603). Assuming that’s correct, the terrible consequences of Section 13–3603 need to be dealt with through the political process, because the courts can’t save us from ourselves.
