Introduction
The recent decision by the Arizona Supreme Court in Planned Parenthood Arizona v. Mayes (2024) has brought to the forefront crucial questions regarding the interpretation of abortion statutes. This case revolved around the interaction of two seemingly conflicting Arizona statutes: a territorial-era ban on abortion from 1864 (Arizona Revised Statute or ARS § 13-3603) and a more recent law prohibiting elective abortions after fifteen weeks (ARS § 36-2322). While Mayes did not explicitly challenge the constitutionality of these statutes, the fractured verdict reveals a significant division in judicial approaches to interpreting abortion laws.
This article delves into the Mayes ruling by examining the contrasting interpretive methods employed by the court. It finds that while the majority focused on plain language interpretation, their approach appeared to inject their own interpretation into the historical context behind the enactment of ARS § 36-2322, particularly in light of evolving federal abortion rights jurisprudence. More significantly, the article reveals that while the majority and the dissent may have disagreed on the specifics of what the statute actually meant to convey, the court was unanimous in rejecting the recognition of any implied or limited right to abortion.
This kind of jurisprudence underscores the need for adopting a nuanced approach to statutory interpretation —one that considers historical context and fundamental rights consideration— and balances them in a harmonious manner. Furthermore, Mayes emphasizes the importance of acknowledging the historical underpinnings of substantive claims to liberty. By shedding light on the tensions inherent in the final decision, this article contributes to the ongoing discourse on abortion rights and the trajectory of abortion rights litigation in American constitutional law.
Context and Conflict
On Tuesday, 9th April 2024, the Arizona Supreme Court handed down a landmark ruling on abortion rights- one that would impact nearly 7 million Arizona residents, almost half of whom are women.
The case in question, Mayes, revolved around the conflict between two sets of laws in Arizona's statute books. The first was ARS § 13-3603, a territorial-era abortion law dating back to 1864, which banned all abortions except those necessary to save a woman's life. The other set was the abortion statutes in Title 36 of ARS, specifically ARS. § 36-2322 which proscribed physicians from performing elective abortions after fifteen weeks' gestation, except in cases of medical emergencies. The definition of "medical emergency", as provided in A.R.S. § 36-2321(7), were those situations where the continuation of the pregnancy would, according to the doctor's good faith clinical judgment, result in the woman's death or create a serious risk of substantial and irreversible impairment of a major bodily function. Compared to the older statute, the newer one provided wider exceptions and set the gestational limit to fifteen weeks. However, none of the statutes contained exceptions for rape or incest.
While abortion rights continue to remain one of the most controversial social, political, and moral issues in the United States even today.[1] For decades, Arizona has been at the forefront of pushing the boundaries of constitutional protections for women's reproductive rights.[2] When viewed collectively, Arizona's restrictive abortion laws, which encompass a multitude of restrictions implemented after the United States Supreme Court's decision in Planned Parenthood v. Casey (1992) very likely violated Casey (and by extension, the United States Constitution) for substantially hindering women's access to abortion care. This is so because Arizona’s laws at that time imposed several regulatory obstacles that expressly aimed at impeding various aspects of the abortion decision-making process in a manner that Casey forbade.[3] One such law was introduced in 2022 through Senate Bill 1164 (SB 1164) which amended Title 36 of ARS to set the permissible gestation limit for elective abortions to fifteen weeks.
However, Mayes did not deal with the constitutionality of § 13-3603 or Title 36 of ARS. Instead, it addressed a question of § 13-3603’s enforceability. In a 4-2 ruling, the court held that with the overturning of Roe v. Wade (1972) and Casey by the United States Supreme Court in its decision in Dobbs v. Jackson Women's Health Organization (2022), the power to regulate abortion went back to the states. The Dobbs ruling also clarified that even though there was no longer a federal constitutional right to abortion, state legislatures could still recognize (or not) abortion rights in their jurisdictions if they so wished. And in Mayes, this led to an ancillary thorny question of whether the fifteen-week abortion ban, as stipulated in ARS. § 36-2322, created a limited right to an abortion akin to the right recognized by Roe.
The Court’s Opinion
On the issue of abortion rights, the court was unanimous. All the judges agreed that by decriminalizing abortions until fifteen weeks of gestation, Title 36 did not, in effect, create a limited right to an abortion in Arizona much the same way Roe did for the country. The Justices differed, however, on whether the court ought to have weighed in on this question at all in the first place. The dissent felt that by first asking the question and then answering it, the majority did quite the opposite of what they claimed they set out to do, namely, engage in a plain language exercise of Title 36’s statutory interpretation. Instead, the dissent argued, the majority attributed its meanings to the statutes to conclude that the older statute would automatically stand in the absence of Roe.
Because this case involved reconciling conflicting statutes – one newer and the other older – the majority first looked at the newer statute, ARS. § 36-2322, and concluded that it was "vague" because it failed to explicitly clarify whether it created independent statutory authority for abortion intended to repeal or restrict the older statute (§ 13-3603) or merely acknowledged the existence of a contemporary federal constitutional right to abortion under Roe at the time of its passage. Because the statute lacked this explicit clarification, the majority decided to look at the construction provision of SB 1164 for some answers.
The two-part construction provision in SB 1164 clearly states that SB 1164 did not recognize a right to an abortion, nor did it repeal ARS §13-3603. An additional provision also clearly states that Arizona laws recognize the rights of unborn children at all stages of development, similar to that of any other human, thereby clarifying the legislative position of ARS. §36.23 on both abortion and foetal rights. But did this mean that §36.23 overruled § 13-3603? Here, the majority reasoned in the negative because Title 36 and the corresponding construction provisions were passed when Roe was still the law of the land. Thus, they held that these laws had to be interpreted through the lens of the changing contours of the United States Supreme Court’s abortion jurisprudence. This meant that Title 36, for them, was merely Arizona’s statutory mechanism for restricting and regulating Roe’s holding on abortion – in other words, it was a stopgap arrangement; and now that Roe had fallen, the default statute to be enforced had to be the older territorial-era law: §13-3603.
A Differing Dissent
On enforcing §13-3603, the dissent differed from the majority in two ways. First, they believed there was no need to inspect the construction provisions of SB 1164 at all because the law wasn’t “vague”. Second, they challenged that the majority’s assumption that Title 36 was a stopgap law. Simply because Title 36 was passed during Roe did not mean that it ought to be replaced in the absence of Roe. Case in point here was the absence of a trigger law in Arizona’s statute books and no evidence in the plain text of § 36-2322 indicating that it forcefully accommodated Roe. Quite the opposite, parts of SB 1164 would have been unconstitutional under Roe, because Roe wouldn't have permitted a fifteen-week ban.
However, because §36-2322(B) went into effect three months after the opinion in Dobbs was issued, the fifteen-week ban stood. In terms of harmonizing the two statutes, the dissent applied the general/specific canon. They concluded that because the more recent statute was more specific than the older (and more general) one, the more recent statute would need to take precedence. This canon, however, was rejected by the majority because they believed it was unnecessary to apply, given that a plain language reading of the construction provision in SB 1164 clearly stated that § 36-2322(B) did not intend to repeal §13-3603. Eventually, the majority had their way and ruled that §13-3603 was enforceable.
Implications for United States Constitutional Law
Almost a month after the judgment, on May 13, 2024, the Arizona Supreme Court issued an order staying the enforcement of §13-3603, which was initially set to be enforced on April 23, 2024. The stay extends for ninety days from the date of the order, through and including August 12, 2024, allowing the Attorney General time to potentially file a petition for certiorari in the United States Supreme Court. Additionally, on May 2, 2024, Governor Hobbs signed legislation repealing A.R.S. § 13-3603 into law. If, in the interim, §13-3603 did go into effect, the real-life consequences of living with a near-total abortion ban from the nineteenth century, one with no exceptions for rape or incest, would have been catastrophic for women seeking abortion care, especially those from vulnerable backgrounds.[4] On the political front, analysts had immediately predicted negative electoral consequences for politicians with strong anti-abortion positions as soon as the verdict was handed down. Thus, it should come as no surprise that, following massive victories for abortion rights activists in key states like Ohio, Kentucky, and Virginia in the recent past, prominent Republican leaders immediately began distancing themselves from the same extreme positions they once championed. But beyond the immediate social and political impact, Mayes offers intriguing insights into the future trajectory of abortion rights jurisprudence in the United States.
1. Substantive Due Process
More than 60 years ago, the United States Supreme Court addressed a case (Ferguson v. Skrupa, 1963) which involved a Kansas statute that criminalized "debt adjusting" contracts. In it, the court unanimously ruled that the Kanas regulation did not violate the Due Process Clause of the Fourteenth Amendment. Writing for the court, Justice Black emphasized that the substantive due process doctrine, a philosophy that historically allowed courts to invalidate both state and federal laws based on judges’ perceived wisdom, had “long since been discarded". The court contended that it was time to return to the original constitutional proposition of preventing judges from “substituting their social and economic beliefs” with the judgment of legislative bodies. However, the court's subsequent decisions over the next six decades did quite the opposite, solidifying the substantive due process principle in a series of landmark cases concerning family and marriage rights. These included Roe – which legalized abortion nationwide, Lawrence v. Texas (2003) – which decriminalized consensual same-sex conduct nationwide, and Obergefell v. Hodges (2015) – which legalized same-sex marriage nationwide-to name just a few. This chequered application of the substantive due process doctrine is emblematic of O. Conkle’s[5] observation that the United States Supreme Court has "birthed" and "killed" this doctrine many times in the past. The top court's verdict in Griswold v. Connecticut (1965) was said to herald a "rebirth" of the doctrine after nearly thirty years of abandonment. But now, almost half a decade after Griswold, with the Court having abandoned both the right to an abortion in Dobbs and the notion of "penumbral zones" of privacy as previously enumerated in Griswold, the substantive due process doctrine appears to have died yet again.
Contrary to Justice Black’s proposition, however, it was the conservative-super majority leaning[6] court’s verdict in Dobbs, and not the 1963 ruling in Skrupa, that seems to have sounded this new death knell for the doctrine. This is exemplified in Mayes, where none of the justices supported Planned Parenthood's assertion that Title 36 conferred a limited right to abortion- and this is worrying. While the dissenting and majority opinions presented differing interpretations of plain language statutory interpretation, they were united in jointly dismissing Planned Parenthood's Title 36 abortion rights claims. Put it another way, none of the judges were convinced that by independently permitting elective abortions up to fifteen weeks' gestation, the newer law repealed or restricted § 13-3603 in a manner that recognized a right to an abortion, albeit in a limited manner. While the dissent ultimately deemed §13-3603 to be unenforceable, it was not because, as Planned Parenthood contended, a limited right to abortion existed. Instead, it was because the two statutes could not be harmonized without enforcing the newer one.
2. The Impact of Dobbs
With the passage of Dobbs, the focus in abortion jurisprudence appears to have shifted away from substantive due process arguments and towards a tighter interpretation of statutory language, regardless of its impact on women's liberty interests in accessing reproductive care. This is evident from other notable post-Dobbs judgments in lower federal courts and state courts around the country,[7] with the Michigan Court of Claims being an apparent lone exception. In a September 2022 ruling, Michigan Court of Claims Judge Elizabeth Gleicher declared Michigan’s 1931 criminal abortion ban unconstitutional and issued a permanent injunction barring enforcement of the ban. In a rare judgment, she cited provisions in the Michigan Constitution that guaranteed an implied (not express) right to privacy and bodily integrity. This approach stands in stark contrast to the observations in Mayes which rejected abortion rights claims, wholesale.
Conclusion
A side-by-side reading of the majority and the dissent in Mayes demonstrates that even plain language statutory interpretation is not quite as plain and straightforward at all. Despite appearing to be neutral, the majority seemed to impute a certain context into the existence of Title 36 that led it to eventually render its existence incompatible in the absence of Roe. That the dissent employed the same exercise of plain language statutory interpretation, and not a substantive interpretation of the law, to come to the opposite conclusion is telling and demonstrates that we are already in a new era in US abortion law jurisprudence; one in which the court's role in locating and defending women’s liberty rights will be severely curtailed to the extent permitted explicitly by the legislature- a position that stands in stark departure from the court’s own history, as elucidated by Justice J Douglas his dissent in Poe v. Ullman (1961) where he observed that “When the Framers wrote the Bill of Rights, they enshrined in the form of constitutional guarantees those rights—in part substantive, in part procedural—which experience indicated were indispensable to a free society.’ To now abandon substantive rights claims would be akin to turning the clock back on history and going back in time – a feat that the Arizona Supreme Court has accomplished with much ease.
[1] See Pew Research Center, “America’s Abortion Quandary (2022); Robinson, C. The ethical dilemma of abortion. Journal of Student Research at Indiana University East, 3(1), 10-19 (2021).
[2]See Roseberry, Jeffrey. Undue burden and the law of abortion in arizona. Arizona State Law Journal, 44(1), 391-422 (2012); Althouse, M. A. The Creation of an Undue Burden: Arizona House Bill 2036 and State Abortion Regulations Post-Casey. Wm. & Mary J. Women & L., 20, 173 (2013).
[3] Ibid, Roseberry (2012) and Althouse (2013).
[4] See Stevenson, A. J. The pregnancy-related mortality impact of a total abortion ban in the United States: a research note on increased deaths due to remaining pregnant. Demography, 58(6), 2019-2028 (2021) which looked at existing data on pregnancy-related deaths in the United States. The study estimated how many more deaths might occur each year if all abortions were banned and suggest that a ban on abortions could lead to a significant increase in pregnancy-related deaths. In the first year alone, deaths increase by 7% and this number could climb even higher in subsequent years, reaching an estimated 21% increase in subsequent years. The study also suggests that Black and Hispanic people would be disproportionately affected by such a ban. These communities could see a rise in pregnancy-related deaths by 12% and 6% in the first year, respectively, with even steeper increases in later years; See also, Pop-Eleches, C. The impact of an abortion ban on socioeconomic outcomes of children: Evidence from Romania. Journal of Political Economy, 114(4), 744-773 (2006). which explores the consequences of restricted abortion access in Romania, where a dramatic shift in abortion laws occurred in the 1960s. Back then, Romania had one of the most relaxed abortion policies in the world. However, in 1966, Nicolae Ceausescu abruptly outlawed abortion and family planning for most women. This meant legal abortions were only permitted in very specific circumstances, like mothers over 45, those with health problems, or pregnancies resulting from rape or incest. The study used data from a large sample of the Romanian population born around that time, which included details like family background, education, and job opportunities later in life. Interestingly, the study found a clear link between the abortion ban and negative outcomes for children born after the law change. It found a sharp increase in infant and late foetal deaths in the years following the ban. Additionally, children born during that period also seemed to display worse schooling and labour market outcomes.
[5] Conkle, D. O. The Second Death of Substantive Due Process. Ind. LJ, 62, 215 (1986).
[6] Jessee, S., Malhotra, N., & Sen, M. A decade-long longitudinal survey shows that the Supreme Court is now much more conservative than the public. Proceedings of the National Academy of Sciences, 119(24), e2120284119 (2022).
[7] See, for example, State of Texas v. Becerra et al., No. 23-10246, where the United States Court of Appeals for the Fifth Circuit ruled that Texas hospitals would not be required to perform emergency abortions to stabilize the life of patients despite the presence of a federal statute guaranteeing, since 1986, public access to emergency services regardless of patient’s ability to pay. A similar matter from Idaho is now before the United States Supreme Court; or State of Utah, et al. v. Planned Parenthood Ass'n of Utah, No. 20220696-SC (Utah 2023) in which the Utah Supreme Court dismissed Planned Parenthood Association of Utah's (PPAU) claims that a restrictive Utah law, which banned most abortions, violated the implied state constitutional right to an abortion. The court ruled that there was no express or implied right to an abortion in the Utah Constitution and that "There is no express or implied right to an abortion in the Utah Constitution. PPAU does not—and cannot—identify textual or historical evidence suggesting that the original public meaning of any of the constitutional provisions PPAU invokes (alone or in combination) includes an implied right to abortion.”
This article has been authored by Kanav N Sahgal. Project Manager at the Samvidhaan Fellowship and Communications Managar at Nyaaya. This blog is part of the RSRR’s Excerpts from Experts series.