Arizona Supreme Court holds that near-total ban on abortion controls over more recently enacted legislative scheme that allows abortions to be performed up to the 15th week of pregnancy.

In 1864, Arizona’s first territorial legislature enacted Arizona’s first criminal code. This code included a prohibition on abortion in nearly every circumstance, and imposed criminal penalties on those who performed or facilitated abortions as well as those who sought them. These penalties were incorporated into state law after statehood and were most recently updated in 1977. This version of the statute prohibits a person from performing or otherwise aiding in an abortion “unless it is necessary to save” the mother’s life. A.R.S. § 13-3603.

For roughly the past 50 years, however, this statute was not in effect—in 1971, Planned Parenthood sued the Arizona Attorney General, challenging the constitutionality of this total abortion ban. After several years of litigation, the Court of Appeals, based on the U.S. Supreme Court’s decision in Roe v. Wade, determined that the total abortion ban statute was unconstitutional and entered a permanent injunction enjoining its enforcement. After the Court of Appeals’ decision, rather than remove the abortion ban statute from state law, the Arizona Legislature passed a series of laws regulating the practice of abortion. The latest iteration, enacted in 2022, prohibits abortion after 15 weeks except in certain limited circumstances and imposed a variety of procedural requirements for any doctors performing an abortion.

When the U.S. Supreme Court overruled Roe in Dobbs v. Jackson Women’s Health Organization, the then-Arizona Attorney General moved to set aside the permanent injunction against the total abortion ban statute. Planned Parenthood opposed the motion, arguing that, in order to harmonize the various laws enacted by the legislature since the injunction was entered, the 15-week abortion ban allowed for abortions up to that time. The superior court rejected this argument but, on appeal, the Court of Appeals concluded that the total ban and the 15-week ban could be read together so that doctors who performed abortions that complied with the 15-week ban were not subject to prosecution.

The Attorney General did not seek review from the Arizona Supreme Court. Instead, an individual doctor petitioned the Court for review. On review, the Court vacated the Court of Appeals’ decision and affirmed the superior court’s judgment. The Court acknowledged that Planned Parenthood’s argument that, by allowing for abortions up to the 15-week mark, the text of the 15-week ban statute may indicate the procedure was otherwise permissible, was a logical reading of the statute. But the Court went on to conclude that the statute was nevertheless ambiguous because it did not expressly delineate how it interacted with other statutes—namely, the total abortion ban.

Based on this ambiguity, the Court looked beyond the text of the 15-week ban statute to a construction provision that was part of the enacting legislation but not the statute. That construction provision indicated the Legislature did not intend to repeal the total abortion ban. Relying on that construction provision, the Court determined that the Legislature wanted the total ban to control in the event Roe was overturned. Proceeding from that same logic, the Court determined that there was no need to harmonize the total ban with the 15-week ban—because the Legislature had, in the Court’s view, indicated the former controlled if Roe was overturned, there was nothing to harmonize.  

Justice Lopez authored the opinion for the Court, joined by Justices Bolick, Beene, and King. Vice Chief Justice Timmer, joined by Chief Justice Brutinel, authored a dissent. The dissent asserted that the majority’s analysis failed in the first instance because the 15-week abortion ban, on its face, was not ambiguous. Noting that the even the majority agreed that the logical and plain reading of the statute allowed abortions to be performed up to 15 weeks of pregnancy, the dissent pointed out the majority nevertheless relied on factors beyond the text of the statute itself to conclude the 15-week ban was ambiguous. Put simply, that the statute was silent about a different statute did not make it ambiguous.

The dissent went on to explain that, to the extent there was a conflict between the total ban and the 15-week ban, the latter operated as an exemption to the former—if a doctor followed the procedures set out in the 15-week ban, an abortion would be lawful. Otherwise, it would be unlawful. This reading, the dissent argued, gave effect to both statutes while giving effect to the Legislature’s later enactment of a more specific statute.

Posted by: Joshua J. Messer