Arizona justices say they won’t reconsider abortion ruling

PHOENIX — The Arizona Supreme Court won’t revisit its conclusion that an 1864 law, outlawing virtually all abortions, remains valid.

In a brief order late Friday, the justices declined a request from Democratic Attorney General Kris Mayes to reconsider their April 9 ruling. That decision found that the old law, which forbids abortion except to save the life of the mother, Trumps a more recent statute that allows abortions until the 15th week of pregnancy.

The justices gave no reason for rejecting Mayes’ bid but it took only three days to do so.

An aide to Mayes said she had no immediate comment.

The request for reconsideration did, however, serve a purpose of sorts for Mayes, who opposes the abortion ban. It delayed by two weeks when the state will once again be able to start enforcing the territorial-era law, which has long been on hold. Now it appears the soonest that can happen is June 25.

That still won’t be soon enough to prevent what Planned Parenthood Arizona says could be a “blackout” in abortion services. Even if the Arizona Legislature gives final approval to repealing the old law, the soonest it could be taken off the books would be sometime in August.

In the state high court’s 4-2 ruling on April 9, the majority rejected arguments by Planned Parenthood that the 2022 law — the one allowing abortions up to 15 weeks — superseded the old law.

The justices pointed out that the old law was never repealed, even after the US Supreme Court ruled in 1973’s Roe vs. Wade that women had a constitutional right to terminate a pregnancy. That means the state is free to start enforcing the near-total ban again, after the nation’s high court overturned Roe in 2022, the Arizona justices found.

Even the 15-week law, adopted by the Arizona Legislature as a contingency in 2022, while lawmakers were awaiting the US Supreme Court decision later that year, spelled out it was not repealing or overriding the 1864 law.

In seeking reconsideration, Joshua Bendor, Mayes’ solicitor general, argued that the Arizona justices never examined how the 2022 law should be reconciled with the old one. That conflicts with the court’s own principles of how statutes are constructed, he said.

“The court should reconsider its framing of the issue and thus, its ultimate conclusion,” Bendor wrote.

But he said that even if the majority still believes the territorial-era law is valid, the justices should look at the wording of their April 9 ruling.

“Even if this court does not reconsider its final conclusion, it should at a minimum review certain statements which conflict with this court’s statutory interpretation principles,” Bendor said. Leaving the wording as is — and in a ruling that can be cited as precedent in future cases — “may have troubling consequences for future interpretive disputes,” he wrote.

The court decided that it need not reconcile the 15-week law, a Bendor statute called “unambiguous,” with the older one.

They didn’t try to “harmonize” the two laws to see if there are ways they both could be interpreted as valid. By contrast, that’s what the Arizona Court of Appeals did in its ruling last year, in which it concluded on 15 -week law was enforceable to the extent it did not conflict with the older law. The state Supreme Court overturned that decision.

“The opinion would seem to encourage courts to engage in far-reaching inquiries to divine legislative intent with much more frequency,” Bendor said. “Such an open-ended expression of legislative interpretation invites judicial mischief.”

Of potentially greater legal concern, Bendor argued, was the justices’ decision to rely on another law to reach the conclusion legislators never really intended for the 15-week limit to override the old law.

That statute says all Arizona laws must be interpreted to conclude that an unborn child at every stage of development has “all rights, privileges and immunities available to other persons, citizens and residents of this state,” subject only to federal constitutional restrictions and US Supreme Court decisions.

Arizona Justice John Lopez, writing for the majority, said that statute “belies the notion that the Legislature intended to create independent statutory authority for elective abortion,” meaning the 15-week law.

Bendor pointed out that a federal judge had declared that statute unconstitutionally vague, barring the state from using it when considering the legality of abortion.

“Nothing in Arizona law allows this court to use unconstitutionally unclear text to guide judicial interpretation of other statutes, nor to position itself as a court of higher review regarding federal decisions,” Bendor wrote. “This court may not narrow the scope of a federal court injunction.”

The possible June 25 date at which enforcement of the near-total abortion ban could begin is based on two facts. First, the normal practice of the Arizona Supreme Court is to issue a formal “mandate” enforcing its orders 14 days after the last ruling. In this case, that would be Friday’s refusal to reconsider its earlier decision.

On top of that, former Attorney General Mark Brnovich, a Republican, had agreed in a separate — and still pending — case that the state would not enforce the law for at least 45 days after the mandate.

In the meantime, the Attorney General’s Office, now under Mayes, has said it is investigating other legal prospects to keep the old law from once again being enforced. Those include Mayes’ argument that a ban on abortion violates a provision of the Arizona Constitution that guarantees an individual right to privacy.