The Arizona Supreme Court's Use and Abuse of Statutory Construction

 

By now, all know through the magic of modern media the opinion of the Arizona Supreme Court in the case of Planned Parenthood Arizona, et al v. Mayes, et al.  In that opinion it held that a law adopted in 1864, when Arizona was a mere territory, effectively making abortion a crime unless to prevent the death of the mother, is applicable here and now, some 160 years later.

It always disturbs me when a court reaches more than a century into the past to dispose of issues coming before it now.  I think that in many cases, what was the law then was adopted in circumstances so different from those pertaining now that it's applicability is suspect.  This attitude has made me feel embarrassed, often, whenever I've cited legal antiquities after a search reveals that they are the only authority supporting the position I take in a case.  I can't help but think that the court and opposing counsel will conclude that if they are all I can rely on, there is a problem with my argument.

Regardless, though, laws adopted long ago which haven't been expressly repealed or ruled invalid by a court remain.  They exist and are available in a court of law.  They may well be binding from the perspective of the law.  The law is rather like the Internet in that all our statements, decisions, rules and regulations incorporated into the law cannot be erased no matter how evil, unjust or foolish they seem now.  For example, there are laws prohibiting certain sexual acts between consenting adults and laws prohibiting adultery still out there, though for the most part unenforced.

The opinion is lengthy, and I can only review it in summary in this post.  However, review it I will and I think the review addresses the major points and arguments made.

Since the 1864 law (let's call it "Law 1") was adopted by the Territory of Arizona, the State of Arizona adopted a law (let's call it "Law 2") which in pertinent part states that except in the case of a medical emergency, an abortion may not be knowingly and intentionally performed if the probable gestational age of "the unborn human being" has been determined to be more than 15 weeks.  At issue was the question whether Law 1 or Law 2 applies at this time.  In other words, at issue was the question whether an abortion could be performed under Arizona law if it was performed at any time before the expiration of the 15 week period.

Because neither Law 2 nor anything else expressly repealed Law 1, it is our fate as it was the fate of the Arizona Supreme Court to consider the rules of statutory construction, as it was necessary to interpret Law 2 as related to Law 1.  A law adopted by a legislature is to be construed to say just what it says if its language is clear and unambiguous.  If it is, then construction is not required.  If a law is ambiguous, then recourse may be had to a number of other sources in interpreting it, including, e.g., legislative history (the proceedings of a legislature during the debate and adoption of the law).  Generally, a law is considered ambiguous if two reasonable persons would interpret it differently.

Neither Law 1 nor Law 2 strike me as ambiguous.  The majority of the Arizona court decided Law 2 was, however.  As I noted, it didn't expressly repeal Law 1.  However, it clearly stated that an abortion was prohibited when performed after 15 weeks, unless medically necessary.  It doesn't take much in the way of intelligence to infer from this that an abortion performed with the 15 week period is not prohibited.  If you think as I do and the plaintiffs in the case did, you would conclude that the law allowed abortions to take place within the 15 week period; in other words, that it authorized abortions during that period.   Someone could therefore have an abortion in that period under Arizona law without incurring any penalty under the law.

 The majority conceded this was a reasonable construction of Law 2.  However, it determined that there was another reasonable construction.  Law 2, according to the majority, could reasonably be interpreted merely to describe the circumstances in which a physician may or may not be penalized if an abortion is performed. There being two reasonable interpretations according to the majority, Law 2 was ambiguous.

The majority then looked to legislative history.  It decided from that history that Law 2 was adopted in response to the U.S. Supreme Court decision of Roe v. Wade.  It opined that the Arizona legislature only adopted Law 2 because it had to do so to avoid running afoul of that Supreme Court decision.  According to the majority, Arizona never really wanted there to be a right to abortion.  So, Law 2 can't be construed to that effect.  Also, Roe v. Wade now being overruled, Law 2 must be considered inapplicable and Law 1 thereby must be applicable.

It's clear that Law 2 must be deemed ambiguous in order for this opinion to have any basis.  But the grounds on which the majority decided it to be ambiguous strike me as decidedly unreasonable.  If a law says X may be done in certain circumstances, but may not be done in other circumstances, I'm at a loss to interpret it to say X may not be done in certain circumstances, and may not be done in other circumstances as well.  X is allowed, or authorized, in one case and prohibited in another. 

I'm uncertain whether the majority is contending that being allowed or authorized by law to engage in certain conduct doesn't mean one has a right to do so, or something else.  If the former, I don't know how to characterize a legal right except as providing that something may be done without incurring a governmental penalty.  Under Law 1, abortion was penalized in any circumstances if not needed to save the life of the mother.  Law 2 is clearly inconsistent with Law 1.  Law 1 had no effect after Law 2 was enacted.  This would seem to be an implied repeal.  The fact that there are statements which appear in the record that it isn't really intended to be a repeal, which the majority notes, doesn't detract from the plain language of Law 2.  The fact that Roe v. Wade was overturned does not render Law 2 invalid, which the majority seems to believe, as Dobbs doesn't hold that a law like Law 2 is unconstitutional.  So, it's necessary that Law 2 be repealed to be ineffective.

The sad lesson is that the rules of statutory construction, though useful, can be used to support more than one interpretation of the law.  In the end, a judgment must be made regarding when those rules can reasonably be applied.  The Arizona Supreme Court's determination that Law 2 is ambiguous seems to me to be contrary to a common sense reading of that law.  A real effort is required to construe it as saying abortion is not allowed in the first 15 weeks, and construing it to say merely that abortions will not be penalized in some circumstances would amount to codifying a decision not to enforce the law under certain circumstances.