A Civil War-era abortion ban will soon control lives in Arizona — for now

On Tuesday, the Arizona Supreme Court held that a near-total criminal abortion ban first passed in 1864 can be enforced. But, a November vote could change that.

The Arizona Supreme Court on Tuesday held that a near-total abortion ban passed into law initially by a legislature made up of 27 men in the territory of Arizona during the Civil War is “enforceable” today.

The 4-2 decision would put a criminal abortion ban in place that has no gestational limits, only has an exception for the life of the mother, and includes a mandatory two-year prison sentence for anyone convicted under the law. Enforcement of the ban was put on hold by the court for 14 days so that the trial court can consider any further arguments by the plaintiffs in the case before the near-total ban goes into effect.

The decision from court, which consists of all Republican appointees, was immediately criticized by political figures on the left and right — likely because the political reality is that this extreme ban has a strong chance of being rejected by voters in Arizona, who are expected to have the opportunity to amend their state constitution this fall to protect abortion rights.

The majority — made up wholly of appointees of former Gov. Doug Ducey — suggested on Tuesday that its decision was the result of the U.S. Supreme Court’s decision overruling Roe v. Wade in 2022. In reality, though, Tuesday’s decision was only possible because the Arizona Supreme Court’s majority decided that the state’s 2022 15-week abortion ban was ambiguous about whether it permitted abortions before 15 weeks — which then allowed the majority to minimize the text of the 2022 law, read a “trigger” provision into state law that isn’t there, and allow broad enforcement of the near-total ban.

“In 1864, the First Legislative Assembly published a code of laws governing the territory of Arizona,” Justice John R. Lopez IV wrote for the court, acknowledging the historical nature of the provision that has been blocked since Roe v. Wade was decided in 1973. “[B]ecause the federal constitutional right to abortion that overrode [the near-total abortion ban] no longer exists, the statute is now enforceable, prospectively prohibiting abortion unless necessary to save a woman’s life.”

One hundred and sixty years ago, the abortion ban was passed into law as part of the territory’s first legal code, in a provision addressing the criminal punishment for poisoning a person:

The 1864 Arizona territory’s criminal provision that included an abortion ban.

This is the ban today, which maintains much of the original language, including the fact that it criminalizes an intent “to procure the miscarriage” of a pregnant person:

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.

No one disagrees that this old territorial law remains on the books in its most recent iteration.

William T. Howell drafted the territory’s laws, and the resulting code was named after him.

The question — and dispute between the majority and the dissent — is what happened when Arizona passed its 15-week abortion ban in 2022, and how that law interacts with the 1864 law. Here’s the key provision:

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.

The two dissenting justices — Vice Chief Justice Ann Timmer, in an opinion joined by Chief Justice Robert Brutinel — argued that this statute is unambiguous. Citing a pre-Roe decision of the U.S. Supreme Court interpreting D.C.’s then-existing abortion ban, Timmer wrote that “abortions falling within” an exception to a ban are “legal,” concluding that Arizona’s 15-week ban “clearly permits physicians to lawfully perform abortions that are not expressly outlawed.”

The dissenting justices, both appointees of former Gov. Jan Brewer, argued, essentially, that that should be the end of it, as to the determination of what the 2022 law means. Only then, they argued, should the court figure out how, after Dobbs v. Jackson Women’s Health Organization, this law interacts with the near-total ban.

The majority, however, goes about the case in essentially the reverse way, holding that the language of the 2022 law is ambiguous about whether it protects abortion at all, in part because it must be considered that it was passed in light of Roe. This then opens the project of figuring out what the law means to considering evidence beyond the text of the statute to decide what the statute means.

Having found the text of the 2022 law ambiguous, the majority points to a “construction provision” of the 2022 law, which includes two key parts. First, it states that the law doesn’t “create … a right to an abortion,” and second, it doesn’t “repeal, by implication of otherwise,” the near-total abortion ban.

Now, that does initially sound pretty convincing. But, only if read alone and as presented by the majority. As Timmer made clear in dissent, if the law isn’t ambiguous, the court shouldn’t be looking at anything else, including the “construction provision.” The majority only got to that point, Timmer explained, by reading ambiguity into the law by claiming that its text could be as “merely acknowledg[ing] the existence of a contemporaneous federal constitutional right to abortion under Roe at the time of its passage.”

That is not how statutory interpretation works. You can’t read ambiguity into the plain text of a statute by saying that something happening outside of the text could have been the reason for that text.

But that was exactly what Lopez did, writing in the majority opinion that — now that Roe is gone — “any interpretation of the [15-week ban] statute that ignores or minimizes the impact of Dobbs’ disavowal of a federal constitutional abortion right runs headlong into the construction provision” of the 15-week ban.

In other words, the Arizona Supreme Court looked outside of the text to Roe and Dobbs to create ambiguity, then looked outside of the text again to the “construction provision” to resolve the ambiguity.

Having done that, and concluding that the 2022 law creates no exception allowing for abortions performed by physicians before 15 weeks, then majority then easily concluded that there is no conflict between the two bans — highlighting a U.S. Supreme Court decision holding that criminal systems can create multiple criminal laws covering the same acts.

The legislators responsible for Arizona’s 1864 abortion ban.

Timmer, in contrast, after having decided that there is no ambiguity, then would have considered what to do about the “readily apparent” conflict between the two laws.

“The conflict between the statutes only comes into play in deciding whether one repeals the other or whether they can be harmonized,” she wrote. “It does not transform [the 2022 law’s] plain language into ambiguous text that needs further interpretation.”

Ultimately, Timmer would have held that the 2022 law “operates as an exception” to the near-total ban. “As the more specific and recent statute, [the 15-week ban] applies in circumstances governed by it,” she wrote — reiterating that she agreed with the majority that the 2022 law did not “repeal any aspect of” the near-total ban. The 15-week ban allows for abortions, performed by physicians and under the circumstances permitted under the law, at 15 gestational weeks or less. Applying that law as an “exception” to the near-total ban, she wrote, “does not ‘repeal’ any part of the latter statute.”

Ultimately, under the dissent’s view, “This would mean physicians could perform abortions up to the fifteen-week gestation point or to preserve the pregnant woman’s health without incurring harsh criminal penalties.”

But, under the majority’s decision, “[P]hysicians are now on notice that all abortions, except those necessary to save a woman’s life, are illegal … and that additional criminal and regulatory sanctions may apply to abortions performed after fifteen weeks’ gestation.“

As of now, on April 23, that legal rule — that comes with a prison sentence of between two and five years — will be enforceable.

And yet, the result could end up being in effect for a relatively short time. As Lopez wrote, “A policy matter of this gravity must ultimately be resolved by our citizens through the legislature or the initiative process.”

On that point, the court was unanimous, with Timmer writing in dissent that she “would leave it to the people and the legislature to determine Arizona’s course in the wake of Roe’s demise.”

Less than 200 days after the near-total ban is set to become enforceable, Arizonans will likely have a chance to decide for themselves whether to leave 1864 in the past and add abortion protections to their state’s constitution.