Monday, April 8, 2024

UPDATE: AZ Supreme Court Indicates Desire To Rule Next Week On Requests To Delay Reinstatement of 1864 Abortion Ban

UPDATE, 5/2, 11:30am: "UPDATE: AZ Supreme Court Indicates Desire To Rule Next Week On Requests To Delay Reinstatement of 1864 Abortion Ban"

The Arizona Supreme Court has given the pro-1864 abortion ban parties until next Tuesday to oppose requests to delay the Court's Mandate. Those requests were separately filed by Arizona AG Kris Mayes and Planned Parenthood (below), and they would then have two days to file a Reply Brief.

The compressed schedule indicates a desire to quickly decide the stay requests.

A stay of issuing the Mandate - which is essentially the procedural Order telling the lower court to put the Supreme Court's decision into effect - would freeze the clock on the 1864 law being reinstated.


UPDATE, 5/1, 3pm: "BREAKING: In Light Of Legislature's Repeal of 1864 Abortion Ban, Supreme Court Should STOP Putting It Into Effect In Interim, Planned Parenthood With Governor's Affidavit"

Today's Motion to keep the Arizona Supreme Court from issuing the Mandate (that will start the clock until the 1864 ban is to go into effect) has more heft than the similar Motion filed yesterday. 

Today's is from Planned Parenthood - with an Affidavit from Governor Katie Hobbs - and it points out to the Justices that now that the Legislature has repealed the ban, that it would be "grossly inequitable" for the Court to allow the (really) old law to go into effect before the (new) repeal kicks in. (Without an emergency clause, laws do not take effect until 90 days after the Legislature closes its session. We do not know when the current Legislature plans to adjourn.)

The Hobbs Affidavit simply says that she intends to sign the repeal after it is formally presented to her by the Legislature. (With legislative leadership opposing the repeal, it is possible that that could be delayed.)

The Motion points out that courts in other states have delayed issuing the Mandate in similar circumstances, and have even withdrawn already-issued Mandates. (We have not yet confirmed whether the Arizona Supreme Court Clerk's Office has or has not issued the Mandate.)


UPDATE, 4/30, 11am: "PLAYING OUT THE STRING: AZ AG Mayes asks AZ Supreme Ct to hold 1864 Abortion Ban case for 90 days to give her a chance to appeal to SCOTUS"

Arizona Attorney General Kris Mayes is telling the Arizona Supreme Court that she is thinking about appealing this month's Opinion reinstating the 1864 abortion ban to the U.S. Supreme Court.

She is asking to delay implementation of that ban by 90 days, stating that the 4-2 majority relied on a statute that a federal court found the Arizona statute unconstitutionally vague.

That refers to the "Personhood Provision" which calls for all Arizona laws to consider a fetus - from the moment of conception - to be equivalent to a child. That provision was passed in 2021, but was quickly stayed from going into effect in the long-running Isaacson case. The Supreme Court majority acknowledged that that was enjoined, but stated (in a footnote) that they could rely on its existence to support its statutory construction conclusion that the Legislature did not repeal either that or the 1864 ban when they could have in 2022.

(Notably, the Republican leaders in the Legislature urged the federal judge to lift the stay on that Personhood Provision - the day before the Planned Parenthood Opinion was released.)

"Thoroughly evaluating the merits of a petition on those grounds and assessing the various interests implicated by constitutional litigation involving the State government will take time, however. So, too, will preparing the petition if the Office elects to proceed with the application."

Mayes promises to notify the Arizona Supreme Court if they decide not to pursue a SCOTUS appeal within the 90 days, also giving her a bit of wiggle room if circumstances change elsewhere. (E.g. Legislature repeals with emergency clause, etc.)


UPDATE, 4/26, 5pm: BREAKING: Arizona Supreme Court Swiftly DENIES AG's Motion to Reconsider the 1864 Abortion Ban Decision

The one-sentence Order was "en banc", meaning the entire Court considered the Motion. (No opposition is recorded.)

As noted below, Motions for Reconsideration are very rarely granted. However, because of the quick ruling, it only delayed the closure of the case by a couple of days. The Court will likely issue the Mandate to the lower court next week. By agreement of the parties in a related case, the 1864 ban is to go into effect 45 days after that Mandate is issued. That delay was agreed to to allow the AG or other parties to try to raise further issues in the lower court (Pima County Superior). 


UPDATE, 4/24, 2pm: Especially in light of today's vote by the AZ House to repeal the 1864 ban, I've been asked by several to explain what the "personhood" law is. Here's the brief rundown:

The impact of the "personhood" law could be similar to the 1864 total ban Toma just permitted the repeal of. And, similarly to the 1864 ban, a judge could "revive" the 2021 "personhood" statute.

"Personhood" law, from 2021. Makes (non-IVF) fertilized  egg into a "child" for ALL (non-abortion) laws. Prelim injxn now in place, but Toma-Petersen yesterday told judge he should let it go into effect.


UPDATE, 4/23, 10pm: "BREAKING, IT'S NOT TOO LATE TO RECONSIDER: AZAG Mayes Asks AZ Supreme Court To Reconsider Decision On Arizona's Civil War Era Ban On Abortions; Legislative Leaders Ask Federal Court To Let "Personhood" Statute Take Effect"

Arizona Attorney General Kris Mayes tonight asked the Arizona Supreme Court to RECONSIDER its decision allowing Arizona's 1864 abortion ban to go into effect.

While the Motion is unlikely to sway the Justices' minds - it was a 4-2 Opinion (below), the AG has  delayed the law from going back into effect (by delaying the issuance of the Mandate).

The Motion is below. It makes the case that the justices went against their own textualist approach to statutory construction. "But even if this Court does not reconsider its ultimate conclusion, it should at a minimum revise certain statements which conflict with this Court’s statutory interpretation principles and may have troubling consequences for future interpretive disputes."

 not yet available, but The AG's Office also told a federal court considering the impacts of the Supreme Court's opinion on the separate court challenge to the 2021 law banning abortions because the fetus has a genetic abnormality.

There is a separate federal court challenge to Arizona's 2021 law banning abortions because the fetus has a genetic abnormality.

AZ GOP legislative leaders argued to the federal court tonight that not only does the new total ban make that court challenge moot, but that Judge Douglas Rayes should also allow the accompanying "personhood" law to go into effect. That provision would treat fetuses as equivalent to a child in other statutes.

The AG's Office concurrently filed its Supplemental Brief and urged Judge Rayes to reimpose the preliminary injunction against the Reason Provision. It also notes that there is nothing pending on the personhood provision - it has been enjoined by the court as vague - and that the new decision should not change that.

Rayes asked the parties to brief the impacts of the Planned Parenthood decision on the Isaacson case.



The Arizona Supreme Court has confirmed that it will hand down its long-awaited decision on whether Arizonans are now subjected to the Civil War-era anti-abortion law. The Opinion will be released at 10am on Tuesday.

After the U.S. Supreme Court overruled Roe v Wade two years ago, Arizona's battle over the 1864 law that mandates a 2-year minimum sentence for any abortion provider (with exceptions for life of the mother) took shape.

Arizona's pre-Roe injunction was lifted by a Pima County trial court judge in September 2022. However, the Court of Appeals reversed it in December 2022, stating that it must now be harmonized with the statutes that the Legislature had passed regulating abortion during the period between Roe (1973) and Dobbs (2022).

That is the appeal that is about to be decided by the Arizona Supreme Court Justices (all appointed by Republican governors).

And, it comes in the wake of an interim announcement bv a coalition of abortion rights groups* that they have collected more than 500,000 signatures to place a constitutional amendment protecting abortion rights on the November ballot. (Less than 400,000 valid signatures are needed to qualify.)

Here is some background to prepare for tomorrow's decision:

1) The Supreme Court staff attorneys' summary of the issue to be decided, with good background of the rollercoaster that got us to this point.

2) The Court of Appeals' Opinion that the justices are reviewing.

3) The oral argument from December 12, 2023, before the Arizona Supreme Court.

*Disclosure: This article is written by attorney Paul Weich, who is a volunteer coordinator and informal advisor in the coalition's signature-gathering process.

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