A tale of two statutes

In 1864, Arizona was still the Wild West, a sparsely settled territory of ranchers who sparred with cattle rustlers, outlaws, and Apaches. But the territory had laws—including a law criminalizing abortion except in cases where the mother’s life was in danger.

Old as it is, that law—codified in 1901 as A.R.S. Section 13-3603—is at the center of a lawsuit filed in an Arizona state court in October by the pro-abortion Center for Reproductive Rights and the American Civil Liberties Union. The challengers ­contend that a newer Arizona law containing more limited protections for the unborn overrules the strict 1901 legislation.

S.B. 1164, signed into law by Republican Gov. Doug Ducey in March, bans abortions by physicians after 15 weeks from the pregnant woman’s last menstrual period. The so-called “trigger law” was passed in anticipation of the Dobbs v. Jackson decision from the Supreme Court that overruled the right to abortion declared by Roe v. Wade. Yet Dobbs also triggered the more restrictive 1901 law, by then blocked for nearly 50 years by a court ruling entered shortly after Roe, when state laws restricting abortion began to fall.

With both Arizona laws now in effect, how should they be reconciled? Gov. Ducey has said the 15-week ban is now the law in the state. Attorney General Mark Brnovich, also a Republican, disagreed, saying the more restrictive 1901 abortion ban takes precedence over the law passed in March. Brnovich points to a pro­vision in the new law stating that ­nothing in it is intended to “repeal, by implication or otherwise, section 13-3603.” A state court judge in late September allowed the 1901 law to go into effect, but an appeals court on Oct. 7 put a hold on that ruling until at least Nov. 17.

When a state has multiple laws in conflict, courts may be called upon to harmonize them and interpret the legislature’s intent. Yet Arizona’s laws are not at odds, argued Thomas Berg, a law professor at the University of St. Thomas in Minneapolis. Berg said courts do not generally presume that a legislature intended to repeal a law but look for an explicit statement that they intended to do so. “Even if the [Arizona] Legislature thought Roe might be overruled, it might also have anticipated that the older law might still be challenged and that the 15-week ban would be easier to defend,” he added.

Of the more than 13,000 abortions performed in Arizona in 2020, only 5 percent were performed after 15 weeks of pregnancy, the abortion cutoff that the Center for Reproductive Rights and ACLU are arguing for, according to the latest report from the Arizona Department of Health Services. Like most duels, the outcome of this legal faceoff is indeed a matter of life and death.