PHOENIX (CN) — Two years after the U.S. Supreme Court left the issue of abortion access up to the states, Arizona’s Supreme Court made its decision Tuesday, lifting a stay on an 1864 near-total ban on abortions.
The Supreme Court was tasked in December with balancing two conflicting state laws — one that bans abortions after 15 weeks and another that bans them outright, except when deemed necessary to save the mother's life.
The high court of the state chose the latter in a 4-2 decision, reviving the ban and allowing with it, the state to prosecute anyone who performs an abortion.
"This case involves statutory interpretation — it does not rest on the justices’ morals or public policy views regarding abortion," Justice John R. Lopez IV wrote for the majority. "We conclude that § 36-2322 does not create a right to, or otherwise provide independent statutory authority for, an abortion that repeals or restricts § 13-3603, but rather is predicated entirely on the existence of a federal constitutional right to an abortion since disclaimed by Dobbs v. Jackson Women’s Health Organization."
Months before Roe v. Wade was overturned in the U.S. Supreme Court, the Arizona Legislature passed a law known as Title 36, which expressly prohibits abortions after 15 weeks in the absence of a medical emergency. Against the backdrop of Roe v. Wade, the law meant that abortions performed up to 15 weeks were legal.
But the U.S. Supreme Court’s decision in Dobbs v. Jackson Women's Health Organization overturned the decades-old constitutional right to abortions — reviving a near-total ban on abortions in Arizona.
That law, known as Section 13-3603 or the territorial ban, was passed in 1864 — 48 years before Arizona became a state and 55 years before women could vote. It includes no exceptions for victims of rape or incest.
Planned Parenthood was challenging the territorial ban when the U.S. Supreme Court issued Roe v. Wade, which barred its enforcement. When Dobbs reversed that decision decades later, it also lifted the injunction, reviving Planned Parenthood’s lawsuit.
Arizona's Democratic leaders are refusing to enforce the ban.
In a press conference after the ruling was released, Governor Katie Hobbs doubled down on the executive order she issued last year, which takes prosecuting authority over abortions away from county attorneys and places it exclusively in the hands of the attorney general.
When asked if the order would be subject to legal challenges given the Supreme Court's decision, Hobbs said, "Bring it on."
"I wouldn't have issued the executive order if I didn't think it was legally sound."
Arizona Attorney General Kris Mayes reiterated her commitment to Hobbs' order.
"We are not going to prosecute a woman or a doctor for an abortion in the state of Arizona while I'm attorney general," Mayes said outside the Arizona Capitol. "Not on my watch."
"By striking down a law passed this century and replacing it with a law passed 160 years ago, the court has risked the health and lives of Arizonans," Mayes said. "It is one of the worst decisions in the history of the Arizona Supreme Court, if not the worst."
Hobbs called on the Republican-controlled Legislature to nullify the decision by repealing the territorial ban.
"They can do this today," she said from the top floor of the executive tower.
Two Republican legislators, state Senator T.J. Shope of Coolidge and state Representative Matt Gress of Phoenix, took to X, formerly Twitter, to agree.
"I cannot and will not condemn women, especially victims of rape or incest, to be forced to carry their pregnancy to term," Gress wrote. "We need a policy that protects the rights of women and new life."
Both lawmakers say they prefer the post-15-week ban.
Vice Chief Justice Ann A. Scott Timmer, joined by Chief Justice Robert M. Brutinel, cited extensive case law in her 18-page dissent to detail why she found her colleagues erred in their decision.
"My colleagues accuse me of 'deliberately blind[ing]' myself to legislative history and the Legislature’s construction note in interpreting § 36-2322," Timmer wrote. "Not so. With eyes wide open, I fulfill the Legislature’s intent by giving plain meaning to the language actually enacted. I decline to engage in the guesswork needed to engraft onto § 36-2322(B)’s straightforward language a meaning the Legislature may or may not have intended had it anticipated the Supreme Court would overrule Roe."
The Arizona Court of Appeals balanced the two laws this past December, allowing physicians to perform abortions up to 15 weeks into a pregnancy and banning non-physicians from performing them at all. Dr. Eric Hazelrigg, an Arizona gynecologist and obstetrician and court-appointed intervenor in the case, appealed that decision to the state Supreme Court, which disagreed with the appeals court’s decision.
Jake Warner, an Alliance Defending Freedom attorney who represented Hazelrigg, applauded the court in a press release.
"Life is a human right, and today’s decision allows the state to respect that right and fully protect life again—just as the legislature intended," Warner said. "We celebrate the Arizona Supreme Court’s decision that allows the state’s pro-life law to again protect the lives of countless, innocent unborn children.”
In her dissent, Timmer said that courts have a duty to "harmonize statutes to rectify conflicts, as far as possible, and avoid construing one statute as impliedly repealing another."
"What the Legislature did express in plain language was a statutory scheme that includes both § 13-3603 and § 36-2322(B). I would therefore apply the latter statute as an exception to the former, leaving both fully intact and operative," Timmer wrote. "This would mean physicians could perform abortions up to the 15-week gestation point or to preserve the pregnant woman’s health without incurring harsh criminal penalties. If the Legislature or the people desire a different result, either could enact a new law."
The six Supreme Court justices who heard the case — two women and four men — were all appointed by Republicans. The seventh justice, former Maricopa County Attorney Bill Montgomery, recused himself after accusations of anti-abortion bias.
Tuesday's ruling is stayed for two weeks to allow a trial court to hear several state and federal constitutional challenges.
Though abortions may be illegal in 14 days, an initiative to enshrine abortion rights in the state constitution just recently received enough signatures to make it onto the November ballot. The initiative, if supported by voters, would create a “fundamental right” to abortion any time before viability — the age at which a fetus can survive outside of the womb. A fetus is typically viable after 24 weeks of pregnancy, a far cry from the 15 weeks Arizonans now have to make that decision.
The majority said in their ruling they prefer the decision to be made by the voters.
"The abortion issue implicates morality and public policy concerns, and invariably inspires spirited debate and engenders passionate disagreements among citizens," Lopez wrote. "A policy matter of this gravity must ultimately be resolved by our citizens through the Legislature or the initiative process. Today, we decline to make this weighty policy decision because such judgments are reserved for our citizens. Instead, we merely follow our limited constitutional role and duty to interpret the law as written."
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