The Arizona abortion law appeal–a likely win for Planned Parenthood?

Background: Now that Roe v. Wade has been overturned, Arizona’s pre-Roe law that bans all abortions except to save the life of the mother is constitutional. But there’s strong disagreement over who can be prosecuted under the ban.  In an ongoing court case (Planned Parenthood v. Brnovich), Planned Parenthood argues that licensed doctors cannot be prosecuted under the ban because they are governed instead by a newly passed law that prohibits licensed doctors from performing abortions after 15 weeks except in a medical emergency.  The Attorney General contends that even licensed doctors can be prosecuted under the ban.

The case was originally filed in 1971. In 1973, the court issued an injunction preventing enforcement of the ban because the Roe decision had made it unconstitutional.  A few weeks ago, the court vacated that injunction, meaning that the ban could be enforced.  But last Friday, an appeals court suspended the lower court’s order, which means that the injunction is at least temporarily back in place, and some providers are once again performing abortions. In this blog, we cover the latest developments.

A few weeks ago, a Pima County superior court dissolved a 50-year-old injunction against prosecutions under Arizona’s territorial-era abortion ban. Planned Parenthood appealed. The Arizona Court of Appeals has not decided the case yet, but last Friday it stayed the order dissolving the injunction, which means that while the appeal is pending, the territorial ban cannot be enforced. The appeals court made this determination because the lower court failed to “harmonize” the territorial ban with more recent statutes, including the recently-passed 15-week law.  It believes at this point that it is likely that once it considers all the abortion statutes, it will decide that an injunction should remain permanently in place.  So at least temporarily, doctors cannot be prosecuted under the state’s territorial-era abortion ban.

This is not a final determination that the law allows doctors to perform abortions in Arizona.  Although some Arizona providers have resumed abortions to the extent permitted by the 15-week law, others may still be deterred from doing so.  Nonetheless, this is an important decision in several respects. 

The lower court failed to carry out its duty to clarify the law.

The appeals court ruled that courts have a duty to consider all Arizona abortion laws (not just the constitution and the territorial ban) and clarify the law in the circumstances here. This reversed part of the lower court’s ruling.  Although the lower court suggested that it did not agree with Planned Parenthood’s interpretation of abortion law, it did not base its ruling on that, but rather the appropriate role of the court.  It ruled that it was inappropriate for it to harmonize the laws because that argument was not raised in the original complaint in the case fifty years ago.  

The appeals court did not even mention this perceived procedural shortcoming in its ruling, implicitly concluding that there was no procedural problem that prevented the lower court from making a ruling on the law.  The appeals court mentioned that both sides had sought clarity on the law, possibly suggesting that the Attorney General was not at all blindsided by issues that were not raised in the original complaint.  

The appeals court’s decision to keep the case was arguably unusual, but justifiable.

Lower courts often decide cases based on a procedural issue as opposed to the substance of the case, as the court did here.  But ordinarily if an appellate court disagrees, it would send the case back to the lower court and order it to rule on the substance. This is particularly true when rulings depend on facts and not just the law.  A ruling on whether to impose an injunction depends on facts: a court has to weigh the hardships that the plaintiff will suffer if there is no injunction against the hardships the defendant will suffer if there is one.  Appeals courts usually defer to lower courts’ determinations of facts, and are notoriously reluctant to do this kind of fact-weighing themselves.

But in this case, the appeals court’s lack of deference to the lower court’s fact-finding role is justifiable.  While laws have changed, the factual basis for an injunction has not changed since the original injunction was imposed nearly fifty years ago.  Just like in the early 1970s, prosecutors have indicated that they intend to prosecute doctors under the abortion ban.  Doctors obviously now face enormous hardships from fear of prosecution for performing abortions that might be entirely legal, just like they did in the early 1970s.  The trial court that originally imposed the injunction way back then considered the facts and found that those hardships justified an injunction. So even though I find it interesting that the appeals court weighed the relative hardships here without the trial court first doing so, I really do not see any big overreach by the court of appeals in arguably bypassing the lower court’s fact-finding role here. 

The appeals court ruling also makes sense given the need for clarity sooner rather than later.  The lower court had already signaled that it did not buy Planned Parenthood’s harmonization argument, even though it did not rule on that basis.  Sending the case back to have the lower court to make a legal determination would have arguably just been a waste of time.  And as the appeals court pointed out, both sides had asked for clarity on the law anyway.

The appeals court has signaled that it will harmonize the abortion ban with newer abortion statutes.  That’s good news for Planned Parenthood.

My track record in predicting the path of this case has been spotty at best, so take my predictions with a grain of salt!  However, I’ve always maintained that Planned Parenthood has the better arguments.  

Planned Parenthood and the Attorney General will likely make arguments similar to those they made in the lower court.  Indeed, appeals courts often decline to consider brand new arguments on appeal.  That being said, the appeals court would probably rather hear the parties’ best arguments given the importance of the case, and so the parties will have leeway to expand or modify their arguments.

To review, Planned Parenthood argues that the abortion ban, A.R.S. § 13-3603, should be harmonized with A.R.S. §§ 36-2322, a law passed earlier this year that prohibits doctors from performing most abortions after 15 weeks of gestation, and other laws passed since Roe v. Wade that seemingly provide for heavily regulated but legal abortions performed by licensed doctors.  According to Planned Parenthood, if all the laws relating to abortion are interpreted in harmony, licensed doctors can legally perform abortion within the limits of the 15-week law.

“Harmonization” means that a court will attempt to resolve conflicts between statutes by interpreting them so that all statutes have effect in some set of circumstances. Conversely, courts will avoid interpreting a conflict between two statutes in a way that renders one of the statutes inert by giving it no effect in any circumstance; courts presume that legislatures do not pass laws that never apply and do nothing.  Moreover, a more recent and specific statute will be interpreted to apply over an older, more general statute.  

It is very common for the language of statutes to conflict, and courts routinely resolve conflicts stemming from such conflicts.  Often, these cases are very easy for courts to resolve applying these harmonization rules.  For example, suppose a state had the following two statutes:

Statute #1: “For all purchases of goods, the buyer must pay a 5% sales tax.”

Statute #2: “Non-profit corporations do not have to pay sales tax on purchases of goods.”

The language of the statutes conflict when applied to non-profit corporations: if #1 is read in isolation, the non-profit would have to pay sales tax; under #2, it would not.  

Courts use common sense to resolve this kind of conflict.  Most courts would reason that #2 applies to non-profits and they pay no sales tax, because if #1 were to apply to non-profits, #2 would never have any effect in any circumstance.  Courts don’t think it makes much sense for a legislature to pass or keep a law that never has any effect. A court would therefore rule that #2 applies to the non-profit, and #1 applies to everyone else.  

Courts sometimes call it “implicit repeal” when a newer statute conflicts with an older one and the newer one is interpreted such that the older one never has any effect.  Courts strive to avoid implicit repeal unless it’s absolutely the only way to interpret statutes that makes any sense.

Planned Parenthood’s argument for how to harmonize the abortion ban and the 15-week law isn’t really any more complicated than this.  The older abortion ban applies to everyone according to it’s terms and outlaws virtually all abortions, and the 15-week law applies to licensed physicians and outlaws only most abortions after 15 weeks.  To give both laws effect, a court should apply the 15 week law to physicians, and the abortion ban to everyone else.  The 15 week law has not implicitly repealed the abortion ban under this interpretation, because the abortion ban applies to everyone except licensed physicians. 

The Attorney General arguments are not particularly strong ones.

The Attorney General has argued that there’s a few reasons why the abortion ban and the 15-week law should not be harmonized as Planned Parenthood suggests.  First, he has claimed that harmonization would constitute implicit repeal.  But this argument is just a misunderstanding of what implicit repeal means; Planned Parenthood’s interpretation does not implicitly repeal the abortion ban, as explained above.  I don’t think this argument will get any traction in the court of appeals.

A second argument that I think won’t get any traction is the Attorney General’s new argument that the ban and the 15 week law should be harmonized as alternative criminal statutes.  Under this interpretation, a prosecutor would have discretion to pick and choose whether to prosecute a doctor under the 15-week law, which imposes a lesser sentence, or the abortion ban, which imposes a harsher sentence.  As mentioned in my last post on this subject, this interpretation makes little sense, as it forces a prosecutor to charge a doctor with the harsher penalty for a late-term abortion, but allows a prosecutor to charge a doctor more leniently for an early-term abortion.  Courts avoid interpreting statutes in ways that reach absurd outcomes like this.

Perhaps the Attorney General’s best argument is that the legislature never intended for there to be any legal abortions other than what the Supreme Court had required under Roe v. Wade and subsequent cases.  According to this argument, the legislature only intended for there to be legal abortions if the federal constitution required it.  After Dobbs eliminated the constitutional right to obtain an abortion earlier this year, the argument concludes, all the laws passed since Roe that seemingly regulate legal abortions are to be more or less ignored.

 The Attorney General has pointed to various provisions and statutory comments within the abortion statutes to support his contention that this was the legislature’s intent.  For example, the legislature passed statutory comments within the 15-week law, including that the law did not “[c]reate or recognize a right to abortion” or “make lawful an abortion that is currently unlawful.”  I don’t think either of these statements strongly support the Attorney General’s position, however.

For one thing, these comments are not part of the actual statute.  Legislatures often include this sort of commentary along with statutes they pass to guide courts in interpreting the statutes, but if a court determines that the language of the actual statutes clearly dictates a particular result, the court need not even consider such commentary.  So the directives in the comments carry less weight than if they were actual statutory provisions.

Furthermore, neither of these particular comments clearly support the Attorney General’s position.  Certainly, some hard-line abortion opponents in the legislature might have thought that the comment that the 15-week law did not “create or recognize a right to abortion” meant what the Attorney General argues it means–that the 15-week law has no effect without a constitutionally recognized abortion right.  But arguably, even Roe never created a right to an abortion, even though we often imprecisely say that it did; all Roe created was a right to obtain an abortion.  In other words, the Constitution never required that government provide abortions, and thus this statment can reasonably be interpreted to merely avoid any interpretation that would require the government to provide an abortion on demand. 

And when the legislature passed the 15-week law, abortions in the first 15 weeks were lawful, because Roe was still in effect.  Thus, the directive that the law was not to be interpreted to “make lawful an abortion that is currently unlawful” can be interpreted to merely protect against any interpretation that would expand legal abortions beyond what Roe required.  Legislative comments often contain commentary like this that is designed to protect against unintended consequences.  

The Attorney General has argued that the operative date to determine what abortions were “currently unlawful” is the date the statute took effect.  It points out there was no legal abortions on that date because Dobbs had been decided and the ban was effective by then.  But there’s no indication in the comments that “currently” refers to the effective date and not the date of passage.  And it seems much more plausible that the legislature was referring to the current state of the law as it knew it when it passed the law, rather than the state of the law at some future unknown date.

We likely won’t have to wait that long for a ruling.

At any rate, the appeals court will now rule on Planned Parenthood’s arguments and its request for a modified injunction to protect doctors from prosecutions under the abortion ban.  The appeals court has required that all briefs in the case be submitted by November 17.  The court has shown it will act fast in this case, and I expect it to rule within a few weeks after that.  That ruling will be appealable in the Arizona Supreme Court.

Slade Smith, JD

Slade is Assistant Director of the Applied Health Policy Institute and an Arizona attorney. He is a 2017 graduate magna cum laude of the University of Arizona James E. Rogers College of Law and co-recipient of the 2017 Ralph W. Aigler Memorial Award for his professional and scholarly contributions to the college. He is from Columbus, Ohio, and now lives in Tucson, where he regularly enjoys outdoor activities in southern Arizona's beautiful and varied desert and mountain landscapes.