Abortion, the Arizona Supreme Court, and the rule of law

The court didn't decide abortion policy, it decided that the Legislature had. But Mayes asserts that she alone decides.

As a matter of legal analysis, the Arizona Supreme Court’s abortion decision was unexceptional and unavoidable. 

The court did not decide that the abortion policy in Arizona should be to forbid it except to save the life of the mother. It decided that the Arizona Legislature had decided that. And that wasn’t a difficult conclusion to reach, since the Legislature said as much in plain writing. To reach a different conclusion required ignoring the plainly stated legislative intent and engaging in mental gymnastics to reconcile two clearly irreconcilable statutory provisions, one banning all abortions except to save the life of the mother and another making abortions lawful under any circumstances up to 15 weeks into the pregnancy and widening the circumstances under which one could be performed even after that. 

Too much has been made of the more restrictive abortion ban dating to territorial days. It was the law in Arizona when Roe was decided in 1973, preempting its enforcement. The law, however, remained on the books. Although the broad abortion ban was dormant, the Legislature nevertheless amended it in 2021 to remove penalties for women seeking an abortion, leaving the penalties applicable to providers. 

Roe and its progeny effectively created an unrestricted right to an abortion up to the point of viability, usually regarded as 22 to 24 weeks into the pregnancy. States could limit the practice after that, although the court never articulated a comprehensible set of standards regarding what restrictions were permissible and what were not. 

In 2022, pro-life states were attempting to get the U.S. Supreme Court to move the unrestricted period to 15 weeks, rather than the then prevailing 22-24 weeks. Arizona joined the effort by passing a law (Senate Bill 1164) adopting the 15-week threshold. In so doing, the Legislature included a construction clause as follows:

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. 

Section 13-3603 is the statute making providing an abortion illegal except to save the life of the mother. 

To everyone’s surprise, the high court, rather than moving the unrestricted threshold, reversed Roe in its Dobbs decision. The construction clause clearly states the intention of the Legislature that the more comprehensive ban was the intended policy in a post-Roe world. By the construction clause, the Legislature essentially reaffirmed the comprehensive abortion ban as the state’s policy in such an eventuality.

Except for the subject matter, the majority opinion, written by John Lopez IV, would be regarded as a pedestrian and obvious exercise. Inadvertently, the dissent, authored by Ann Scott Timmer, makes the point.

According to the dissent, the bill creating the 15-week threshold was effectively an amendment to 13-3603. Reading the two purportedly harmoniously, doctors were exempt from the ban on abortions up to 15 weeks. And after 15 weeks, abortions could be performed to preserve the health of the mother, not just to save her life.

The mental gymnastics involved dismissing or reconciling the plain language of the construction section. For example, the construction section plainly says that the bill doesn’t “create or recognize a right to abortion”. The dissent contends that not prosecuting something isn’t the same thing as creating a right to it. As a philosophical point, that could be an interesting disquisition. However, as a practical legal matter, it is the proverbial distinction without a difference. In a post-Roe world, SB 1164, left standing, would effectively create a statutory right to abortion under any circumstances up to 15 weeks into the pregnancy, contrary to the construction section.

The construction section also said that the bill didn’t “(r)epeal, by implication or otherwise, section 13-3603”. Saying that SB 1164 amended, rather than repealed, 13-3603 is to ignore the practical effect. The Legislature didn’t mean only to preclude interpreting SB 1164 as repealing 13-3603 in its entirety. The clear intent was to preclude interpreting the bill as repealing any part of it, “by implication or otherwise”. The harmonization reading clearly and largely repeals 13-3603 by implication. Under the harmonization reading, rather than most abortions in Arizona, post-Dobbs, being illegal, virtually all of them would be legal, since virtually all of them take place within the 15-week threshold.

It would have been cleaner if the Legislature had included a statutory trigger repealing the 15-week threshold in what was considered the unlikely event of Roe being overturned. But the construction section is effectively a trigger. The court majority was being faithful to clearly stated legislative intent.

Which means that ire over the result should be directed at the legislators who preserved a total ban on abortions except to save the life of the mother as the default policy in the event of Roe being overturned, rather than the justices who simply affirmed their decision and chose not to engage in mental gymnastics to avoid an obvious conclusion. Far from dictating that abortions in Arizona are henceforth illegal except to save the life of the mother, the court acknowledged the potential for other legal challenges to 13-3603 and delayed the effective date of its ruling to allow time for them to be renewed, post-Dobbs. Abortion policy in Arizona remains a vibrant issue, legally and especially politically. The court hasn’t attempted to have the last word. 

Nevertheless, there are rumblings of anti-retention campaigns being conducted against two of the justices in the majority – Clint Bolick and Kathryn King – expressly in retaliation for this decision.

I have written previously about how these retention elections threaten an independent judiciary and how holding judges politically accountable for individual decisions undermines the rule of law. If these anti-retention campaigns fully blossom, it will vividly, and dangerously, illustrate the point.

But that’s not the only undermining of the rule of law going on. Gov. Katie Hobbs, post-Dobbs, issued an executive order purporting to vest all enforcement powers regarding abortion in Attorney General Kris Mayes, who in turn said that she would enforce no abortion laws whatsoever. In an interview with Howard Fisher of Capitol Media Services, Mayes made clear that she meant all abortion laws, including ones that have been upheld in court.

In other words, according to Mayes, abortion policy in Arizona isn’t determined by what the Legislature and governor enact, or how the courts interpret and apply what has been enacted. She as attorney general, unilaterally and exclusively, determines what abortion policy is.

I’m not sure a court would uphold this usurpation of the prosecutorial powers of county attorneys, not to better enforce the law, but to prevent it from being enforced at all. But there is a larger point and consequence. 

Mayes, as attorney general, is supposed to be an instrument of the rule of law. Her declaration that she not only won’t enforce any abortion laws, she will prevent anyone else from doing so, undermines her credibility in enforcing any laws. 

Mayes reportedly is close to indicting the so-called fake electors, the Trump electors who submitted a false declaration to Congress claiming to be the official slate from Arizona, rather than the Biden slate that was actually certified. At a cursory level, a argument would seem to be able to be made that the acts of the false electors violated at least a few state statutes about creating and submitting documents falsely claimed to be official. 

If the indictment goes through, it will be politically explosive. It would help if the prosecutor was regarded as committed to impartially applying the law as written. It is now impossible to regard Mayes that way, given what she has done on abortion and other issues. 

Any indictment brought by her will be seen, not entirely unreasonably, as a political rather than a legal decision. Those whom Mayes favors, such as abortion providers, are granted immunity in advance. Those whom she disfavors, Trump’s fake electors, get the book thrown at them.

While as a legal matter the court’s decision was pedestrian and obvious, it did unleash a political and legal whirlwind. Arizona's abortion policy is at the top of the political agenda, to be fought out and decided over the next several months. The pro-choice side is likely to prevail. Politically, after Dobbs, the pro-life movement seems very much to be the dog who caught the car. 

The rule of law need not be a casualty in the continuing legal and political battles. 

The rule of law is a vital and vulnerable thing. There is currently a lack of understanding and appreciation for it on all points of the political spectrum. Once lost, it is incredibly difficult to restore. And we, as a body politic, are at considerable risk of losing it.

Reach Robb at robtrobb@gmail.com.