AZ Supreme Court rejects plea to reconsider its ruling implementing the 1864 abortion ban

The Arizona Supreme Court won’t reconsider its decision to revive a near-total abortion ban from 1864 that threatens doctors with prison time. 

Earlier this month, the high court ruled in a 4-2 majority opinion that the 160-year-old law trumps a 15-week gestational ban passed in 2022, effectively outlawing all abortions in the state. Less than two weeks after that ruling was released, Arizona Attorney General Kris Mayes filed a motion to reconsider with the high court. 

Late Friday, the justices shot down that request in a two-sentence court order, but did not give any explanation for the rejection. 

In their argument for why the Civil War-era ban should be Arizona’s chief abortion law, the justices relied heavily on a legislative intent clause added to the 2022 law’s underlying bill that explicitly stated it doesn’t repeal any other laws that came before it — specifically the 1864 law. 

In her motion to reconsider, Mayes argued that the justices had undermined decades of legal precedent and their own judicial record by using sources other than the plain text of the laws to build their argument. The legislative intent clause isn’t a part of state law. Deviating from standard interpretation practices, Mayes warned, would have devastating consequences for future court cases. 

“It is not about ‘a cosmic search for legislative intent’ because ‘the words of a statute are the only thing to which the legislature agreed,’” Solicitor General Joshua Bendor wrote on behalf of Mayes. “A faithful application of this Court’s long-standing principles of statutory interpretation requires that the pursuit to understand the meaning of (the 15-week ban) begin — and end — with its plain language.” 

While the justices in the majority defended their search for legislative intent elsewhere by asserting that the 15-week law is vague because it didn’t explain how it fit with the 1864 near-total ban that came before it, Mayes argued that its meaning is perfectly clear. Based on a plain reading of its text, according to Mayes, the law was crafted to regulate abortions, not virtually ban all of them. 

Mayes’ arguments appeared to be compatible with the criticism of the court’s ruling in the dissenting opinion. In it, Vice Chief Justice Ann Timmer, joined by Chief Justice Robert Brutinel, disagreed with the majority’s premise that the 15-week law is vague, saying that the text is unambiguous. 

“The statute says what it means and means what it says… There is no room for misunderstanding,” Timmer wrote.

But the rejection of Mayes’ motion to reconsider was issued with the approval of all six judges. 

In an emailed statement, Mayes’ spokesman Richie Taylor said the attorney general disagrees with the court’s decision and that her office will continue looking into every legal avenue to prevent the 1864 law from taking effect. He added that, because the court has yet to issue a final mandate in the case, in part due to the delay caused by Mayes’ motion, the reimplementation of the 1864 law has been pushed back two more weeks to June 27. 

The case is likely to see future litigation, as the state Supreme Court charged a lower court with considering constitutional arguments made by reproductive rights advocates. 

And an effort in the Arizona legislature to repeal the Civil War-era law is underway, though that isn’t expected to become effective until months after the near-total abortion ban is reimplemented. For now, abortion rights advocates are seeking to delay the law until the November election, when Arizona voters are likely to decide the legality of abortion care via the Arizona Abortion Access Act, which would enshrine the procedure as a right in the state constitution.