The Weekly Sift

The result is horrible, but it’s a correct reading of the the legislature’s mess.

---

Before he was appointed to the Supreme Court, Judge Oliver Wendell Holmes is supposed to have admonished an idealistic lawyer: “This is not a court of justice, young man. It is a court of law.” In other words, courts exist to apply the laws, not to fix them.

I was holding that idea in mind when I read the Arizona Supreme Court’s ruling reinstating an 1864 abortion law. Undoubtedly, this result — that all abortions are banned excepting only those that protect a woman’s life, and not excepting cases of rape or incest or even health consequences short of death — is horrible. But it could nonetheless be a correct reading of Arizona’s laws.

So here’s the timeline, as I understand it.

In 1864, the territorial legislature passed a law that said:

A person who provides, supplies or administers to a pregnant woman, or procures such woman to take any medicine, drugs or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless it is necessary to save her life, shall be punished by imprisonment in the state prison for not less than two years nor more than five years.

That wording got adopted as part of the penal code approved by the legislature in 1913, shortly after Arizona became a state.

The statute’s constitutionality got challenged in 1971, before Roe v Wade, and after some back-and-forth, an appeals court ruled it constitutional. Then the US Supreme Court’s Roe decision came in 1973, and Arizona courts recognized that the 1864 law was unconstitutional under Roe’s recognition of a federal constitutional right to abortion. But this didn’t stop the legislature from testing the boundaries of Roe.

Between 1973 and 2022, and conforming to the federal abortion right established in Roe, the Arizona Legislature codified dozens of abortion statutes in Title 36. … To the extent permitted by Roe and its progeny, all of these statutes restricted abortions, including adding many procedural requirements for physicians performing abortions.

In 2022, shortly before Dobbs was officially announced, the legislature passed S. B. 1164, which amended Title 36 of the state laws. The main thrust of S.B. 1164 was to ban abortions after 15 weeks, which would violate the rights established in Roe. This was one of many laws red-state legislatures passed after Trump’s three judges joined the Supreme Court. The purpose was to see if the new Supreme Court would chip away at Roe’s protections. What’s relevant for this case is the exact wording:

A. Except in a medical emergency, a physician may not perform, induce or attempt to perform or induce an abortion unless the physician or the referring physician has first made a determination of the probable gestational age of the unborn human being and documented that gestational age in the maternal patient’s chart and, if required, in a report required to be filed with the department . …

B. Except in a medical emergency, a physician may not intentionally or knowingly perform, induce or attempt to perform or induce an abortion if the probable gestational age of the unborn human being has been determined to be greater than fifteen weeks.

Notice that both provisions are phrased negatively: “a physician may not perform …”. Under the prevailing legal interpretation of 2022, i.e. Roe, the abortions not explicitly prohibited would be allowed. But nothing in S. B. 1164 says they are allowed. Quite the opposite:

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 was the descendant of the 1864 law.

So then the Supreme Court’s Dobbs decision reversed Roe. This undid the 1973 finding that the 1864 law was unconstitutional, leaving the current state court to pick up the pieces.

Arizona’s Democratic attorney general argued that by banning abortions after 15 weeks, S. B. 1164 implicitly authorized them prior to 15 weeks, and implicitly repealed the 1864 law. A dissenting opinion in the decision agrees with this argument, but I think the majority got it right: There is no affirmative language in S. B. 1164 that authorizes any abortions.

I agree completely with the moral arguments denouncing this outcome: It’s barbaric that Arizona’s women’s rights are constrained by a law passed before statehood and before women had a right to vote. No court of justice would allow this. But we don’t have courts of justice; we have courts of law.

What can be done? The obvious way to repair this situation is for the legislature to do explicitly what the dissenting opinion thinks it did implicitly when it passed S. B. 1164: repeal 13-3603. That would leave Arizona with a 15-week abortion ban recognizing certain exceptions — maybe not the ideal outcome, but a far better one than the current situation.

Democrats in the legislature proposed this solution, but Republicans blocked it.