In Planned Parenthood Arizona, Inc. v. Mayes, (AZ Sup. Ct., April 9, 2024), the Arizona Supreme Court held that A.R.S. §13-3603 that outlaws all abortions except when necessary to save the mother's life-- originally enacted in 1865-- again became operative when Roe v. Wade was overruled. In a 4-2 decision, the majority concluded that A.R.S. §36-2322, Arizona's 15-week abortion law enacted in 2022, did not prevent the effectiveness of the 1864 law. Senate Bill 1164 which enacted the 15-week law contained the following provision on "Construction" of the law:
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.
Today's majority opinion said in part:
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, 597 U.S. 215, 292 (2022). Absent the federal constitutional abortion right, and because § 36-2322 does not independently authorize abortion, there is no provision in federal or state law prohibiting § 13-3603’s operation. Accordingly, § 13-3603 is now enforceable.
The majority added two caveats:
First, § 13-3603 may be enforced prospectively only. Second, we stay enforcement of § 13-3603 for fourteen calendar days from the filing date of this Opinion to permit the parties, on remand, to determine whether to pursue remaining issues raised in the trial court and, if so, to request further stay relief at the trial court’s discretion.
Vice Chief Justice Timmer dissented, joined by Chief Justice Brutinel, saying in part:
... [R]elying on a statutory construction note tucked within a session law predating Dobbs, the majority interprets § 36-2322(B) as providing that if Roe was overruled, the state would turn back the clock to 1973 by enforcing the near-total abortion ban against physicians, even if they comply with § 36-2322(B) by performing elective abortions before the fifteen-week gestation point or performing abortions when necessary to prevent serious impairment to the pregnant woman’s health. I strongly disagree. As the adage goes, the legislature does not ordinarily “hide elephants in mouseholes.”... And the legislature neither did so nor could do so here with a session law note existing wholly apart from statutory text.
Sections 13-3603 and 36-2322(B) can and should be interpreted harmoniously to permit their joint enforcement until the legislature or the people, through the initiative process, say otherwise. This means physicians should be permitted to lawfully perform abortions before the fifteen-week gestation point or when necessary to preserve the pregnant woman’s health.
Arizona Republic reports on the decision.
