545 P.3d 892
Ariz.2024Background
- Arizona’s near‑total criminal abortion ban (A.R.S. § 13‑3603) dates to the territorial era, was recodified post‑Roe, and has remained on the books though enjoined since 1973.
- Between 1973 and 2022 the Legislature enacted numerous abortion regulations in Title 36, including S.B. 1164 (codified as A.R.S. § 36‑2322), which prohibits abortions after 15 weeks except for a medical emergency and includes a construction provision stating the act "does not create or recognize a right to abortion" and "does not repeal…§ 13‑3603."
- After Dobbs overturned Roe, the Arizona Attorney General sought relief from the 1973 injunction against § 13‑3603; the trial court vacated the injunction, the court of appeals reversed that order and held physicians complying with Title 36 are not subject to prosecution under § 13‑3603.
- The Arizona Supreme Court granted review to decide whether Title 36 repealed or limited § 13‑3603 and whether the statutes can coexist without due process problems for physicians.
- Holding: the Court concluded § 36‑2322 does not independently authorize elective abortion or repeal/limit § 13‑3603 (it was enacted against the background of Roe), therefore § 13‑3603 is enforceable prospectively; the Court declined to facially invalidate Title 36 provisions and rejected a facial due process notice/vagueness claim as to overlapping criminal/regulatory provisions. The Court vacated the court of appeals opinion, affirmed the trial court’s vacatur of the injunction, remanded for further consideration of any remaining constitutional claims, and stayed enforcement of § 13‑3603 for 14 days (and limited enforcement to prospective only).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether A.R.S. § 36‑2322 repealed or otherwise limited A.R.S. § 13‑3603 by creating an independent statutory authorization for elective abortion up to 15 weeks | § 36‑2322’s "except/unless" language and regulatory scheme implicitly permits abortions (i.e., authorizes physicians) and thus supersedes or limits § 13‑3603 | § 36‑2322 was enacted to regulate the federal right recognized in Roe, the construction provision expressly preserves § 13‑3603, and § 36‑2322 does not independently create a statutory right | § 36‑2322 does not create independent statutory authority or repeal/limit § 13‑3603; § 13‑3603 is enforceable (prospectively) after Dobbs |
| Whether the coexistence of § 13‑3603 and Title 36 creates a due process (notice/vagueness) problem for physicians | Overlapping criminal/regulatory provisions leave physicians without clear notice of criminal exposure | Overlapping statutes that criminalize the same conduct are common; prosecutors choose charges; Batchelder and state precedents permit coexisting offenses if conduct and penalties are defined | No facial due process violation; overlapping statutes do not, on their face, fail to give adequate notice; as‑applied challenges remain available |
| Whether legislative materials (construction note, § 1‑219(A), legislative history) operate as a "trigger" that renders Title 36 inoperative after Dobbs | Failure to include an explicit trigger shows legislature intended § 36‑2322 to operate independently after Roe’s reversal | The construction provision, long maintenance of § 13‑3603, and § 1‑219(A) show the Legislature did not intend Title 36 to create an independent abortive right; absence of an express trigger is not dispositive | The Court reads the construction provision and statutory history to mean § 36‑2322 did not repeal § 13‑3603; Dobbs removed the federal right that had made § 13‑3603 unenforceable, so § 13‑3603 is now enforceable |
Key Cases Cited
- Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022) (overruled Roe and returned abortion regulation authority to states)
- Roe v. Wade, 410 U.S. 113 (1973) (recognized federal constitutional right to pre‑viability abortion; formed the background for Title 36 regulation)
- United States v. Batchelder, 442 U.S. 114 (1979) (multiple criminal statutes can coexist; prosecutor’s charging discretion governs)
- United States v. Vuitch, 402 U.S. 62 (1971) (interpreting criminal abortion statute exception for life/health as rendering such abortions lawful under the statute)
- Isaacson v. Horne, 716 F.3d 1213 (9th Cir. 2013) (struck down a state post‑viability abortion ban; discussed limits under federal precedent prior to Dobbs)
- UNUM Life Ins. Co. of Am. v. Craig, 200 Ariz. 327 (Ariz. 2001) (Arizona courts attempt to harmonize statutes and give effect to each when possible)
- King v. Burwell, 576 U.S. 473 (2015) (courts should not interpret statutes to defeat their manifest purpose)