Critics of the Arizona Supreme Court’s Abortion Ruling Seem Confused About What Judges Are Supposed To Do
When the Arizona Supreme Court resurrected a sweeping 19th-century abortion ban on Tuesday, the four justices in the majority did not endorse the policy embodied in that 1864 statute. The issue before the court in Planned Parenthood v. Mayes was whether subsequent legislation—in particular, a 2022 law prohibiting abortion after 15 weeks of gestation—had overridden the 160-year-old ban.
That is not the impression left by critics of the decision. “This ruling is a result of the extreme agenda of Republican elected officials who are committed to ripping away women’s freedom,” President Joe Biden declared. “This reckless decision from the Arizona Supreme Court will put people in life-threatening situations and force many to flee the state for the care that they need,” said Athena Salman, director of Arizona Campaigns at Reproductive Freedom for All (formerly NARAL Pro-Choice America). Arizona Attorney General Kris Mayes, a Democrat, called the decision “unconscionable and an affront to freedom.”
Misleading characterizations of the decision were not limited to Democrats who favor broad abortion rights. They were also offered by Republicans who support abortion restrictions but think the 1864 ban goes too far.
“I signed the 15-week law as Governor because it is thoughtful conservative policy, and an approach to this very sensitive issue that Arizonans can actually agree on,” former Arizona Gov. Doug Ducey said on X (formerly Twitter). “The ruling today is not the outcome I would have preferred, and I call on our elected leaders to heed the will of the people and address this issue with a policy that is workable and reflective of our electorate.”
Even Republican senatorial candidate Kari Lake, who as a gubernatorial candidate in 2022 called the 1864 ban “a great law that’s already on the books” while condemning abortion as “the ultimate sin,” said she was dismayed by the Arizona Supreme Court’s decision. “This is a very personal issue that should be determined by each individual state and her people,” she said in a statement that she posted on X. “I oppose today’s ruling.”
Lake urged state legislators and Arizona Gov. Katie Hobbs, the Democrat who defeated her in the 2022 election, to “come up with an immediate common sense solution.” She alluded to a ballot initiative that would amend the state constitution to explicitly protect abortion rights: “Ultimately, Arizona voters will make the decision on the ballot come November.”
These reactions are what you might expect from pro-choice Democrats and from Republicans who are trying to stake out a moderate position on abortion, either out of sincere conviction or out of fear of the issue’s electoral consequences. The 1864 law, which was enacted by the territorial legislature and readopted in 1913 after Arizona became a state, bans virtually all abortions, making an exception only for procedures “necessary” to save a pregnant woman’s life. In all other situations, the law, codified as Section 13-3603 of the Arizona Revised Statutes (ARS), prescribes a prison sentence of two to five years for anyone convicted of performing an abortion.
That law is much broader than Arizona’s 15-week ban, which was approved as Senate Bill 1164 in March 2022, three months before the U.S. Supreme Court overturned Roe v. Wade. S.B. 1164, codified as Section 36-2322 of the ARS, affected only a small share of Arizona abortions—about 6 percent, judging from federal data.
Contrary to what Democrats like Biden and Republicans like Lake imply, however, the Arizona Supreme Court did not pass judgment on the wisdom or justice of the stricter law, its correspondence with public opinion in Arizona, or even its validity under the state constitution. “This case involves statutory interpretation,” Justice John Lopez IV notes at the beginning of the majority opinion. “It does not rest on the justices’ morals or public policy views regarding abortion; nor does it rest on § 13-3603’s constitutionality, which is not before us.”
Although enforcement of the 1864 ban was enjoined while Roe was in force, the law was never repealed. The question raised by this case was whether the pre-Roe law had nevertheless been superseded by S.B. 1164. The majority concluded that the 2022 law “does not create a right to, or otherwise provide independent statutory authority for, an abortion that repeals or restricts § 13-3603, but rather is predicated entirely on the existence of a federal constitutional
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