Legal Analysis: Arizona's Abortion Ban

"A Profound Violation"

The court in Planned Parenthood et al v. Hazelrigg et al released on April 9, 2024 said that A.R.S. §13-3603 (the existing ban dating from 1864 and recodified several times) and the statute passed in 2022 (A.R.S. §36-2322) are not in conflict and that the legislature intended for A.R.S. §13-3603 to remain the law if Roe v. Wade fell.  The majority reading them together (harmonizing) the law said all abortions except those necessary to save a woman’s life are illegal. If an abortion is performed after 15 weeks, then in addition A.R.S. §36-2322 applies.  All the abortion restrictions on the books remain applicable to any abortion done to save the life of the woman.  The total ban cannot be applied retrospectively.

The court says they are only deferring to the legislature decision which is their obligation. But they also rely heavily on a session law note in the original bill SB1164 (2022) that says they don’t intend to create an abortion right or overturn A.R.S. §13-3603.  A session law note is not the law nor is it in the statute.

The dissent harmonizes the two differently.  They say neither statute is ambiguous, and the two laws can be harmonized under the plain reading and general/specific canons of statutory construction. The specific intent of A.R.S. §36-2322 overrides the general prohibition of A.R.S. §13-3603 by allowing a doctor to perform an abortion before 15 weeks or to save the life of the mother after 15 weeks.

The dissent argues that since the session law note is not the law, the two laws can be harmonized, and there is no ambiguity, the court should not look further than the text of the law to harmonize them and should not consider the session note. Not looking o utside of the plain text is the first rule of statutory construction.

The dissent knocks out the Roe argument by stating that the statute could not have been based on Roe because Roe would not have tolerated a 15-week-ban. Therefore the fact that Roe is no longer good law should have no effect. Further, it doesn’t matter whether there is a “right” to an abortion or not.

One doesn’t need to have a legal “right” to do something.  I have no right to hit someone, but I can in self-defense, and I won’t be prosecuted.  I have no right to drive a car, but I can so long as I have the proper license and registration.  I don’t have to have a “right” to an abortion to a have one.  The legislative session note cannot determine the meaning of a statute – that has been the job of the court since 1803. (Marbury v. Madison.  5 U.S. (1 Cranch) 137 (1803)

When the decision goes into effect is questionable.  While the decision says 14 days from the filing of the opinion, it also says the parties on remand of the case to the superior court can bring up other arguments and again ask for a stay.  But it usually takes 30 days or so for the case to be remanded to the superior court.  In a different case, there is an agreement not to enforce the pre-Roe ban until 45 days after the decision in this case.  The attorney general is saying 60 days.

When the case goes back to the superior court, the petitioners can make arguments on a different theory e.g. violation of privacy in the state constitution that Attorney General Mayes has mentioned or violation of the state religious freedom statute, an argument that recently won in Indiana.

In the Indiana case, the state had passed a law criminalizing most abortions. Five women and Hoosier Jews challenged the law saying it violated their rights under the state’s Religious Freedom Restoration Act (RFRA). They won a stay at the trial court and that stay was upheld at the appeals court.

Plaintiffs alleged that their sincere religious beliefs direct them to seek pregnancy terminations criminalized by the abortion law. Hoosier Jews for Choice alleged its members believe that under Jewish law an abortion should occur if it is necessary to prevent physical or emotional harm to a pregnant woman. The appeals court found that the plaintiffs religious exercise is likely to be substantially burdened by the anti-abortion law and they are likely to succeed on the merits.   

The state argued that abortion is not a religious ritual like recognizing the Sabbath or eating kosher that must be protected.  The judge shot that argument down by pointing out that having health insurance is not a mandatory religious ritual either but with that argument Burwell v. Hobby Lobby got the court to say that a corporation has a religious practice that deserves protection. How a corporation has a religious practice was never explained. Hair growth is not a religious ritual, but Sikh’s have gotten protection under RFRA. Avoiding vaccinations is not a religious ritual but courts have allowed people to refuse vaccinations thus endangering the health and lives of others based on burdening so-called religious exercise.

Arizona has a religious freedom law (A.R.S.§41-1493.01) that is nearly identical to the Indiana one. A raft of these were passed throughout the country though there was no threat to religious freedom but in now familiar performance politics, many politicians jumped on that bandwagon much to their later regret as the statutes have been used as a sword not a shield.

As the anti-abortion laws are based on the beliefs of one religion, which six of the nine supreme cult justices claim, it is a profound violation of the religion of everyone else.

Only 20% of American adults claim to be Catholic. Thus the beliefs of 20% are upheld while the beliefs of 80% are violated.

That is not what democracy nor majority rule means.  But in either case, personal autonomy over one’s own body, is a fundamental right not a popularity contest to be put up for a vote. Strict scrutiny should always be the legal standard of analysis and women treated as equal citizens.

• Dianne Post, Secular AZ Legal Director