After the Arizona Supreme Court upheld the state’s abortion ban yesterday, one of the big attacks against it is that the 1864 law supposedly doesn’t represent the will of the people and is antiquated.
But that contention is not true.
First, the judges on the Arizona Supreme Court represent the people. The seven justices on the state’s highest court are initially appointed by the governor to serve. They then stand for a retention vote for regular terms of six years and that is a ballot vote cast by Arizona voters. As a result, the justices represent the people via electing the governor and electing them directly.
Secondly, the law was affirmed twice after it was initially approved in 1864. As CatholicVote notes in an article:
The over century-and-a-half-old law is set to replace the state’s existing pro-life law which only protects most unborn children after 15 weeks gestation.
Republican then Gov. Doug Ducey signed the significantly weaker legislation into law in March 2022. Less than three months later, the U.S. Supreme Court decided Dobbs v. Jackson Women’s Health Organization overturning Roe v. Wade.
The Arizona Supreme Court held that the 2022 law “is predicated entirely on the existence of a federal constitutional right to an abortion since disclaimed” by the Dobbs decision.
Axios reported that “[a] provision of the 2022 law had affirmed it wasn’t repealing the 19th-century law.”
FOX News noted that the 1864 law “was codified in 1913 after Arizona became a state” and “includes an exception in cases where the mother’s life is at risk.”
Planned Parenthood was challenging the potential reinstatement of the state’s near-total abortion ban from 1864, which has exceptions for life-threatening emergencies, but had been blocked by 1973 Roe v. Wade decision. The Dobbs ruling should allow it to go into effect but the nation’s biggest abortion business challenged it.
The Arizona Supreme Court ruled Tuesday to uphold the state’s pro-life law as written by overturning a lower court decision that misinterpreted the law.
“We conclude that [Arizona’s law] does not create a right to, or otherwise provide independent statutory authority for, an abortion that repeals or restricts [the law], but rather is predicated entirely on the existence of a federal constitutional right to an abortion since disclaimed by Dobbs v. Jackson Women’s Health Organization,” the court wrote in its opinion in Planned Parenthood Arizona v. Mayes. “Absent the federal constitutional abortion right, and because [the law] does not independently authorize abortion, there is no provision in federal or state law prohibiting [the law’s] operation. Accordingly, [Arizona’s law] is now enforceable.”
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Today’s ruling was one of statutory construction, not one of constitutional significance.
“Nothing changes today in Arizona. Enforcement is stayed for 14 days as the Court gave proponents 14 days from today to assert a constitutional challenge to the pre-Roe law. Another case in Maricopa County Superior Court stays enforcement for 45 days,” says the Center for Arizona Policy.
Alliance Defending Freedom attorneys represented Dr. Eric Hazelrigg, an obstetrician and medical director of Choices Pregnancy Center in Arizona, who filed a petition last March asking the state’s high court to review an Arizona Court of Appeals ruling.
The appellate court’s ruling misinterpreted state law, against its plain meaning, to allow abortion in circumstances where the Arizona Legislature prohibited it. It also enjoined officials from fully enforcing the state’s pro-life law to protect unborn children. The Arizona Supreme Court reversed this ruling, allowing the law to be enforced as written.
“Life is a human right, and today’s decision allows the state to respect that right and fully protect life again—just as the legislature intended,” said ADF Senior Counsel Jake Warner, who argued before the court. “Life begins at conception. At just six weeks, unborn babies’ hearts begin to beat. At eight weeks, they have fingers and toes. And at 10 weeks, their unique fingerprints begin to form. Arizona’s pro-life law has protected unborn children for over 100 years, and the people of Arizona, through their elected representatives, have repeatedly affirmed that law, including as recently as 2022. We celebrate the Arizona Supreme Court’s decision that allows the state’s pro-life law to again protect the lives of countless, innocent unborn children.”
In September 2022, the Arizona Superior Court in Pima County appointed Dr. Hazelrigg as the substitute guardian ad litem to legally represent the best interests of unborn children in Arizona, a role Arizona courts have recognized for over 50 years.
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