Today the Arizona Supreme Court ruled 4-2 that abortion in the state is completely illegal unless the mother's life is in danger. Because I like to torture myself, I read the opinion to find out what they based that on. If you also like to torture yourself, read on.
Arizona has long had a law on the books that bans abortion. It became inoperative in 1973 under Roe v. Wade, so in 2022 the Arizona legislature attempted to restrict abortion as much as they legally could by passing a law that banned abortion after 15 weeks.
Both common sense and the law recognize that if you specifically restrict something under certain circumstances, you are implicitly allowing it in all other circumstances.¹ This means the 2022 law implicitly allows abortion before 15 weeks, and since it was passed after the old law it takes precedence.
The court agreed entirely, so that's not at issue. However, the 2022 law also includes a "construction note" that says:
This act does not...repeal, by implication or otherwise, section 13-3603, Arizona Revised Statutes, or any other applicable state law regulating or restricting abortion.
Section 13-3603 is the old law that bans abortion completely, and the legislature explicitly said it was not repealing it. This changes things. It's true that, taken by itself, the 2022 provision banning abortion only after 15 weeks would mean it's allowed before 15 weeks. But that's merely an implication—a strong one, but still an implication, and it can be overridden by clear textual language. In this case, the text says the longstanding ban on abortion is still good law even though it was unenforceable at the time.
The dissenters say the language about not repealing the old ban reflects mere legislative intent because it's contained in a construction note, not the statutory text itself. Therefore it shouldn't be consulted as long as the statutory text is unambiguous. That's a stretch. It is part of the bill, and seems pretty clearly to apply.
Like it or not, the majority opinion appears to have the better of the argument here. In Arizona, anyway, abortion is completely illegal unless the mother is in danger of dying. The legislature can change this anytime it wants.
¹For example, if a sign says "No parking on Sundays," that implicitly means you can park on all the other days.
Like it or not, the majority opinion appears to have the better of the argument here.
Ima disagree and say that instead that gave them a way to reach the conclusion they wanted to reach. Had they wanted to reach the opposite conclusion, they could very well have said "nope, not in the text, and besides 1864 are you kidding?" There is ideological bias at work here, as was the intention of the Republican Lege and Gov who expanded the court and appointed very conservative members.
And now they shall reap the whirlwind. But don't forget the women who will be caught in the undertow in the meantime.
... adding, this could not possibly have been timed better, following Trump's blatantly over-calculated and utterly flaccid remarks. They thought they had the needle threaded and all the ducks in a row (eg Fox), and all that happened was he looked like an impotent weenie. Hee hee hee.
The Legislature specifically mentioned the 1864 law and said, “Yep, that’s good.”
What else is the court supposed to do? The Legislature could hardly have been clearer.
... but not in the text. It COULD have been clearer by putting that qualification in the text, but it did not.
Point being not that the ruling has no valid basis, but that there would have been an equally valid basis for an opposite holding.
It's entirely likely that the "construction note" saying "the 1864 law is cool" was structured that way so that it would slide past politically-moderate legislators who might have objected to an earlier cutoff than 15 weeks if it had been more explicit in the bill they passed in 2022. Similar to how drug companies bury all the side effects to their miracle drugs in small print spoken incredibly fast on their commercials, and similar to how researchers bury contradictory evidence in footnotes that they hope nobody will ever read. Many legislators aren't very bright so they don't always understand exactly what they're reading, and many more legislators are busy so they skim documents and don't actually read them thoroughly. Legislators are humans and humans are lazy and sloppy.
It wouldn't surprise me if you surveyed the AZ legislature before this ruling was issued if a good half of those who voted for the 15-week ban thought it would replace the 1864 law, not augment it.
But as Kevin has written, the AZ legislature can pass a new bill anytime they want to repeal the 1864 law. And as bbleh also wrote, AZ republicans will reap the whirlwind in November. (Something like 91% of Arizonans think abortion should be legal in some or all circumstances.)
Where are our lawyers? I took the term ‘construction’ as the noun form of the verb ‘construe’, and therefore as an instruction to the judicial branch as to how the law should be interpreted and applied. That would not allow another reading. Am I wrong?
Also, I agree with the commenters who believe this was likely a deliberate insertion to conceal an unpopular provision from more moderate legislators and the public.
What do you mean, “but not in the text”?
Yes, in the text. Read Section 2.
It’s true that Section 2 was not part of the law that was intended to be included in the code of statutes, but that doesn’t make it any less binding.
My opposition to abortion bans notwithstanding, what’s so special about 1864? A goodly chunk of our nation’s law dates to 1790.
We were a nation then. AZ wasn't a state until nearly 1900. We don't consider acts of the Continental Congress under the Articles of Confederation binding Federal law.
Where are you getting the Articles of Confederation from?
Ok, I got the date of ratification for the Bill of Rights off by one and the Constitution went into effect in 1789 but still…
(sigh) okay to explain carefully ... Arizona was NOT A STATE in 1864. The US was NOT A COUNTRY (in its present federal form) when the Articles of Confederation were in force. We do not recognize acts passed under the Articles of Confederation as binding federal law. Similarly, one could say that the State of Arizona should not recognize acts passed before it was a state as binding state law. 1790 AFTER Constitution, so laws arguably binding. 1864 BEFORE statehood, so laws arguably not. See?
So the laws in force in Alaska and Hawaii prior to 1959 should be considered invalid?
I don't know about laws passed by the government created under the Articles of Confederation. However, all of the original 13 kept the laws they had as colonies until they were changed by their new state legislatures. I would bet that some of those colonial laws are still on the books and in force. It was also invariable practice for new states to keep their previous laws until the new state legislature changed them. If territorial laws were rendered void when the territory became a state, that would have created a legal vacuum; the new state would have no laws. Nobody deliberately does that.
That would have to be done by a specific act of the new state's legislature, either adopting acts of the territorial legislature or declaring those prior acts to be in force. They won't have carried over automatically. Undoubtedly AZ would have done that in the first session after statehood but it isn't a given. Colonial/state legislatures did the same thing when they started adopting constitutions (and, fun fact, many of them explicitly adopted English common law, but only as it was in 1607).
I'm pretty sure that when states were created by act of Congress, the legislation always had a clause saying roughly, "the laws presently in force in the territory remain in force after it becomes a state, with the same effect as if they had been passed by the state legislature"
That or something like it (provisions in the federal laws governing the territories, say) would avoid a hiatus where no law was in force at all, but states are sovereign within their own boundaries and the laws in effect within a state have to be explicitly passed or adopted by the legislature authorized under the current constitution, or explicitly declared or adopted in the state constitution itself, in case of continuing prior law. It can be a single sentence, often was in the colony-to-state constitutions, but needs to be an explicit action.
Most (all?) states had specific clauses written in their constitutions stating "all laws, court decisions, licenses, etc. granted by the previous territorial/colonial/kingdom/whatever-existed-before government are still in effect" to avoid the legal vacuum you're worried about here. But no state AFAIK literally charges modern-day people with statutes enacted pre-statehood. If whatever-it-was was important enough to keep enforcing on new people and events post-statehood, they re-codified it into a new law or statute post-statehood. Nobody is dusting off the anti-witch statutes or whatever other nonsense laws the Colony of Massachusetts dutifully passed pre-1776 to arraign new defendants today in Boston. Nobody in West Virginia is citing the Code of Virginia in bringing up new charges in that state, even though all of WV was part of VA when some parts of the Code of Virginia were passed. The law-thingy-holding people that run legislatures are pretty good at passing new statutes and laws in bulk whenever there is a geographic split of a jurisdiction or a change in a jurisdiction's legal title (e.g. graduating from a territory to a state).
Apparently the Arizona legislature never bothered to either re-adopt or repeal the territorial abortion law.
According to bare-bones backgrounding by the AP, the criminal code was revised at least twice-- 1901 and at least once more, the last in the 1970s-- and this provision was kept every time. (If that last revision was after Roe that would be a very odd thing to do, maybe as some kind of protest or something, AZ being very right-wing then.) So it evidently wasn't being overlooked.
But we'll likely all learn a lot more about its legislative history very soon.
But no state AFAIK literally charges modern-day people with statutes enacted pre-statehood.
Murder is illegal in all 50 states, and people are charged with the crime all the time. At least here in Minnesota, murder was made a crime before it was a state.
Are you sure about that? I searched for a reference but could not find one.
However, parts of the Treaty of Paris, ratified by the Continental Congress are still in force (https://en.wikipedia.org/wiki/Treaty_of_Paris_(1783)). I could find no reference to it being re-ratified by the Congress formed after the US Constitution came into force.
Were the two justices appointed by Brewer the dissenting votes? The Wikipedia article for the Arizona Supreme Court suggests all were appointed by “R” Governors.
It also suggests that the court was expanded to five Justices in 1949. Doesn’t get into the motivation at the time.
Ducey expanded it to 7 in 2016.
And unless the two dissenting votes were the justices from the previous governor’s time, the vote total would have been smaller but the result the same.
ah would have been the same. same internal discussions, same politics, everything same. well okay then.
I assume this was not called out as court-packing at the time? Not sure why Dems can't learn from this: that voters generally don't care at all about charges of "court packing" since Republicans do it without rebuke.
"The legislature can change this anytime it wants."
Which will happen co-terminus with the first verified report of porcine aviation.
Well, if the good people of Arizona continue to seat oppressive idiots in their Legislature, what do they expect?
Arizona is moving blue. The odds are quite good that they will have a Democrat controlled legislature in the near future, and this court decision may make that future nearer than it would otherwise have been
This will supercharge the abortion amendment which will be in the ballot in November. Unfortunately, many women will suffer in the meantime.
this. I read somewhere that action is still somehow stayed for now but it won't be for long.
Arizona has a Democratic governor and attorney general. The AG is refusing to enforce the abortion ban and has blocked county prosecutors from doing so either.
This is not a long-term solution, obviously, but it doesn't have to be. It only has to last until November, when the voters of Arizona will have the final say.
All change comes with suffering by someone. It really does suck, and I'm not trying to minimize the real pain this will inflict on women, but elections have consequences and far too many AZ women were OK for far too long with voting Republican, voting third party or not voting at all. This is what happens when women let Republicans take control: women lose the right to bodily autonomy. There's only so much shielding Democrats can do to keep voters from getting exactly what they voted for over many decades...
...the 2022 law implicitly allows abortion before 15 weeks, and since it was passed after the old law it takes precedence.... However, the 2022 law also includes a "construction note" ...
Expect something like this if Trump & the GOP sweep DC in the election. They may pass a national ban on abortion after week X, but they won't override older state laws that ban abortions earlier.
"We included a 'construction note.' Sorry you missed that."
former arizona governor ducey (r):
“I signed the 15-week law as governor because it is thoughtful policy, and an approach to this very sensitive issue that Arizonans can actually agree on,”
so pregnant 10 year old victims of rape or incest will be forced to give birth in arizona
very thoughtful, governor! you really shouldn't have...
Is the bounty on Apache scalps still on the books?
Asking for a friend.
if stoning for adultery is still on the books trump won't be campaigning much in arizona
He is going to smoke weed? I thought he was the paragon of healthy virtue.
This is the point. The ones holding office are standing still and waiting for the Valkyries to come for the Arizona government, lock, stock, and barrel. Easy political targets.
¹For example, if a sign says "No parking on Sundays," that implicitly means you can park on all the other days.
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Unless of course the construction workers wrote a note 150 years ago that denied parking and womens healthcare on all the other days.
That's a rule of construction that has to be applied carefully. For instance, if one sign says "No parking on Sundays" and another says "No parking 9:00 am to 5:00 pm" that doesn't imply that you can park on Sundays after 5:00 pm.
Kevin just wrote that sloppily. If a stretch of road only has 1 sign posted with no other signs visible in any direction, and that sign says "No Parking On Sundays" then it's implied you can park along that road on all other days. It should go without saying - but I guess not for the pedants among us - that if there is another sign next to it saying "No Parking 9am-5pm" then both signs are in effect: no parking at all on Sundays and no parking between 9am-5pm all other days.
May more red and purple state residents discover that they all have total abortion bans, combined with the Trump narrative that states should control that power. This is going to be one hell of an election year.
That's what I'm thinking. I see a blue wave forming in AZ.
I've already sent a campaign contribution to Ruben Gallego (who is running for for Senator in Arizona). Democrats also have a good shot at winning first and sixth House districts in Arizona, but we won't know who the candidates are in those districts until primaries are held on June 30.
This sure seems like another case of the Republican dog catching the proverbial car...and now not knowing what to do with it.
Presumably the legislative history will show that the unusual language keeping the 1864 law on the books was another "pro-life" gesture by GOP pols. Now they've got what they said they wanted.
It was likely a (successful) attempt to slide it by the "moderate" legislators in 2022, who almost definitely thought they were voting for a 15-week ban only, and not for the reaffirmation that the 1864 law was still in effect also. Very similar to how corporations bury all the gotchas in the terms and conditions nobody reads, or how drug companies verbalize all the negative side effects of their drugs in rapid fire speech during their commercials. You generally do stuff like that when you're trying to slide something awful or hated by without too many people who could veto/complain about it noticing.
So, now the "age of consent" for girls in Arizona is also reduced to 10 years? ...Asking for a friend ...
Well, I won't ask how the question comes up, but two sections later in this 1864 criminal code is where statutory rape is defined, and yes, 10 is the crucial age. Statutory rape is committed by persons (presumably males) 14 or older on females younger than 10, whether consenting or not. I haven't looked systematically through the code-- though the two sections on kidnapping caught my eye-- but by the parking-sign rule of construction I guess 10 must be the age of consent according to this code.
= : (
When I get older, losing my votes
Many months from now
Will you still be hearing my promises
That I'll never avow?
If I've kissed off Ms. Haley
Will you loudly shut the door?
Can I grab your pussy
Or fondle Lindsey
Like it's 1864?
Earworm! But I like the tune so it's okay
Abortion is illegal in Arizona because of Mitch McConnell.
+1
Women and their supporters should remember that these people just pushed the status of women back to 1864, long before women could even vote, and that would love to push it back even further.
HCR [Heather Cox Richardson] has the 1864 law details: April 9, 2024
https://heathercoxrichardson.substack.com/p/april-9-2024?publication_id=20533&post_id=143440039&triggerShare=true&isFreemail=true&r=otxgo&triedRedirect=true
Kevin's (and the Arizona court majority's) logic makes absolutely no sense.
1) The 2022 law unambiguously allows for abortions before 15 weeks. There is no disagreement.
2) But there is a note in the drafting of the law that directs courts how to interpret the law in cases of ambiguity.
3) While we just agreed that there was no ambiguity about the 2015 law, lets assume it is now ambiguous. While the new law says that only abortions after 15 weeks are not allowed and it takes precedence over the old law, lets assume that the new law isnt clear and doesnt state very directly when abortion is illegal....lets make up that the language of the actual law is just an 'implication'.
4) and now that we have invented ambiguity, we must ignore what the new law says and turn to the old law for guidance....because this is what we wanted.
This kind of legal roundabout to acheive political goals might be common with right wing political judges, but we should not pretend that this is 'the better legal argument'. It is not an actual 'legal' argument to ignore the language of the law because you want a different outcome.