The Arizona Supreme Court today granted Arizona Attorney General Kris Mayes' request for a 90-day stay on allowing the 1864 total abortion ban to go back into effect. The earliest the ban could be enforceable is now August 12, and the Justices stated that they might consider future delays.
Although there was no dissent to today's Order, it states that a majority of the six* Justices approved the decision.
Mayes had asked for time to consider filing an appeal to the U.S. Supreme Court, and Planned Parenthood - along with Pima County Attorney Laura Conover - had asked for a stay because of the eventual repeal of the 1864 law by the Arizona Legislature.
This means that Arizona is currently under the 15-week abortion ban previously passed by the Legislature, with several other possibilities currently in limbo:
(1) The 1864 total ban could still go into effect if the Court's stay expires and the Legislature has not completed their session - the repeal would not go into effect until 90 days after "sine die" (adjournment);
(2) Republican legislative leaders are urging a federal court to lift the stay on their previously-passed "personhood" law (which would be akin to a total ban);
(3) a coalition of groups is preparing to submit several hundred thousand petition signatures to place a proposed constitutional amendment on the November ballot that would protect abortion rights based largely on the now-repealed Roe v Wade concept of "viability".
* Justice Bill Montgomery has recused himself from considering the case.
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UPDATE: "1864 Abortion Ban Repeal, What Repeal?" Yavapai County Atty Tells Supreme Court Legislature Wants AZ's 1864 Ban In Place For the Next Several Months
Less than 24 hours after the Arizona Supreme Court was told that the Legislature wants the 1864 abortion ban in place for the next several months, Planned Parenthood told the Justices today that that is practically and legally "absurd".
The back and forth comes as the Justices are considering requests to delay allowing the Court's opinion to go into effect in the next 90 days. On Tuesday, counsel for Yavapai County Attorney Dennis McGrane and Dr. Eric Hazelrigg suggested (below) that the Legislature purposely did not repeal the 1864 ban with an emergency clause because they wanted the ban in effect (until 90 days after the Legislature closes their 2024 session - which is not expected anytime soon.)
(Arizona's Law has also noted that the GOP legislative leaders argued to a federal judge that he should lift the stay on their previously-passed "personhood" law. That law would amount to a new abortion ban, and the GOP made that argument the day before the Arizona Supreme Court's decision in Planned Parenthood.)
Planned Parenthood's Reply (below) notes that the Legislature's silence is not determinative.
"True, H.B. 2677 doesn’t contain an emergency clause. But that says nothing about any potential limited period of enforcement against the backdrop of a statute that’s been unenforceable for all but a few weeks out of the past 51 years. That’s because “[s]ilence in and of itself, in the absence of any indication that the legislature has considered the interpretation, is not instructive. A rule of statutory construction that requires us to presume that such silence is an expression of legislative intent is somewhat artificial and arbitrary.”
The Reply also disputes McGrane's other arguments that the stay automatically lifted on April 23 and that the Court should reject the delay request based on the same framework they would consider a preliminary injunction.
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