Arizona Supreme Court Reinstates Near-Total Ban on Abortions

Mary Anne Pazanowski
·5 min read
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(Bloomberg) -- An 1864 law that criminalized nearly all abortions in Arizona can take effect, the state’s top court said Tuesday.

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The law—enacted before Arizona became a state—wasn’t repealed or restricted by a later law that banned abortions after the 15th week of pregnancy, Justice John R. Lopez IV said. That 2022 state law didn’t “create a right to, or otherwise provide independent statutory authority for, an abortion,” he said.

It’s a consequential decision in a state that has become an abortion battleground after a Democratic-led administration took over in early 2023. Reproductive rights advocates are collecting signatures for a November ballot measure to enshrine abortion rights in the Arizona Constitution.

The state will also be crucial in determining the presidential election and possibly control of the Senate, and Democrats have been successful in using the issue to drive turnout in elections across the country. A statement from President Joe Biden called the 1864 law a “cruel ban,” and Vice President Kamala Harris released a statement blaming former President Donald Trump for the decision.

Arizona’s 2022 law was predicated entirely on the federal constitutional right to abortion established by the US Supreme Court in Roe in 1973, Lopez said. But the top court’s reversal of that decision in June 2022’s Dobbs v. Jackson Women’s Health Organization gave the 1864 provision new life and required lifting an injunction, Lopez said.

“Absent the federal constitutional abortion right, and because” the new law doesn’t “independently authorize abortion, there is no provision in federal or state law prohibiting” the 1864 statute’s operation, he said.

The decision was put on hold for 14 days, the court said, to give the parties time to determine whether to pursue other constitutional issues that were raised in the trial court. Lopez sent the case back there after vacating the appellate court’s ruling.

An Arizona trial court had set aside an injunction that permanently barred Arizona from enforcing the territorial law, saying the legal basis for it—the Roe holding—no longer exits. An appeals court reversed that decision.

Anti-abortion doctor Eric Hazelrigg’s challenged that ruling to the state high court, saying that Arizona prohibits all procedures except those that are immediately necessary to save a pregnant person’s life. The doctor intervened in the case after Attorney General Kris Mayes (D) said she wouldn’t defend the old version.

Early Reactions

Alliance Defending Freedom Senior Counsel Jake Warner, who argued the case before the court, celebrated the decision for respecting that life is a human right that deserves full protection, “just as the legislature intended.”

“The people of Arizona, through their elected representatives, have repeatedly affirmed” as recently as 2022, that the state’s anti-abortion law protects “the lives of countless, innocent unborn children,” Warner said.

Planned Parenthood Arizona condemned the ruling for stripping “Arizonans of their bodily autonomy.”

This is “is a dark day for Arizona,” Jill Gibson, the group’s chief medical officer, said.

Abortion “bans and criminalizing abortion do not reduce the very real need and demand for this essential health care,” Gibson said. Instead, they “force people to carry unwanted pregnancies, seek abortion outside of the health care system,” travel to get legal care, which is “simply not possible for many Arizonans,” she said.

No New Right Created

The 2022 law had created a right to abortion up to 15 weeks, the plaintiffs said. But that’s a strained construction, because the legislature had no authority to ban all abortions before June 2022, the Arizona Supreme Court said. Lawmakers couldn’t do anything more than restrict the procedure, and there was no reason to codify a right that already existed under federal law, it said.

The court’s majority also rejected Planned Parenthood’s argument that lawmakers’ failure to include an express statutory provision repealing it if Roe were reversed indicated an intention to permit abortions before 15 weeks repeal the 1864 law. “We typically do not infer legislative intent from silence,” Lopez said.

Justices Clint Bolick, James P. Beene, and Kathryn H. King joined.

Vice Chief Justice Ann A. Scott Timmer dissented, joined by Chief Justice Robert M. Brutinel.

They “strongly disagreed” with the majority’s decision to “turn back the clock,” Timmer said. The legislature could have, but didn’t, clarify the law at any time after the Dobbs decision, but didn’t, she said.

Doctors “should be permitted to lawfully perform abortions before the fifteen-week gestation point or when necessary to preserve the pregnant woman’s health,” the dissenters said.

Planned Parenthood Arizona’s president and CEO, Angela Florez, said the ruling “does not reflect the will of the people, as Arizonans are overwhelmingly in favor of abortion access.” This won’t be the end of the fight, she said.

Justice William G. Montgomery recused himself after calls were made for him to sit out the session due to his public anti-abortion statements.

Alliance Defending Freedom represents Hazelrigg.

Miller Pitt Feldman & McAnally PLC, Coppersmith Brockelman PLC, Planned Parenthood Federation of America represent Planned Parenthood Arizona and the Pima County Attorney’s Office.

Planned Parenthood has received funding from Bloomberg Philanthropies, the charitable organization founded by Bloomberg Law owner Michael Bloomberg.

The case is Planned Parenthood Ariz., Inc. v. Hazelrigg, Ariz., No. CV-23-0005-PR, 4/9/24.

To contact the reporter on this story: Mary Anne Pazanowski in Washington at mpazanowski@bloombergindustry.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloombergindustry.com; Nicholas Datlowe at ndatlowe@bloombergindustry.com

(Adds Biden, Harris statements and electoral context in paragraph four.)

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