Is the Arizona Law Protecting Unborn Children Really ‘Archaic’ and ‘Draconian’?

By Daniel Street Published on April 19, 2024

By now, virtually everyone in America has heard about the Arizona Supreme Court’s recent decision in Planned Parenthood v. Mayes, authorizing the enforcement of an Arizona statute criminalizing abortion with the only exception being to save the life of the mother.

The Fake News Media hyperventilated in reporting on the decision, with The New York Times and a host of other legacy media including NBC News, the Associated Press, and CNN running one report after another decrying the decision. While virtually every report said the anti-abortion law before the Court was an 1864 statute, that’s not entirely accurate; the 1864 law was reenacted in 1901 (with modest changes), recodified again in 1928 and once more in 1977.

Some commentators and media questioned the legitimacy of the Arizona Supreme Court’s decision, but, a careful look at it reveals the High Court reached the only conclusion consistent with the statutory law: In short, the pro-abortion parties tried to convince the Court that a law passed by the Arizona Legislature and intended to restrict abortion as much as was constitutionally possible while Roe v. Wade was still the law of the land somehow created a right to an abortion, even though the legislature itself proclaimed the statute could not be used for any such purpose.

The Arizona Supreme Court correctly rejected that effort. Let’s take a closer look at the case.

No, It’s Not From the “Wild West”

As I mentioned, virtually every story about the decision carries a headline proclaiming the anti-abortion law was passed in 1864. While an earlier version of the law did originate in 1864, and the changes to the statute from the original version have been minimal, the statute at issue, A.R.S. §13:3603, was passed in 1977.

The ruling itself merely highlights that the very first criminal code passed in Arizona was the “Howell Code” of 1864, which contained a criminal provision for abortion. The University of Arizona provides digital access to the Howell Code. The relevant provision is in Chapter 10, Section 45 (second sentence).

What happened was this: The First Arizona Legislative Assembly passed an abortion ban in 1864. Thereafter, the Arizona Legislature made modest changes to the statute and reenacted it in the Arizona Penal Code as §273 in 1901. This anti-abortion law was later reenacted into A.R.S. §13-211 in 1928. In 1973, after the Roe v. Wade ruling discovered a federal constitutional right to abortion, Arizona courts prohibited A.R.S. §13-211 from being enforced. Rather than repeal the statute, four years later the Arizona Legislature recodified A.R.S. §13-211 as A.R.S. §13-3603.

The Arizona Court Followed the Law

The questions the Arizona Supreme Court faced in Planned Parenthood v. Mayes were unusual. First, did A.R.S. §13-3603 — reenacted in 1977 but blocked due to Roe v. Wade — now apply? This provision reads:

Or did other changes to Arizona’s abortion laws in the years after Roe v. Wade conflict with A.R.S. §13-3603, somehow repealing or limiting the statute? The majority opinion noted the unusual nature of the statutory review involved in the case.

Essentially, Planned Parenthood and the parties challenging §13-3603 claimed another statutory provision, A.R.S. §36-2322, enacted by the Arizona Legislature in 2022, created a right to an abortion or otherwise authorized abortions to be performed, thereby rendering §13-3603 inapplicable.

However, the pro-abortion parties’ arguments were fundamentally wrong.

As the Supreme Court majority noted, at the time A.R.S. §36-2322 became law, Roe v. Wade was still law of the land; the intent was to limit abortion as much as possible while complying with Roe. But in 2022, the United States Supreme Court reversed Roe completely with its ruling on the Dobbs v. Jackson Women’s Health Organization case.

The Arizona Legislature provided the following “construction provision” with the 2022 statute:

What other legitimate decision could the Court reach, given the legislature’s proclamation that the statute it passed in 2022 “does not … Create or recognize a right to abortion” and “does not … Repeal, by implication or otherwise, section 13-3603”?

Only a judge willing to completely disregard the solemn expression of the legislature’s will and turn the law on its head could find that §36-2322 “created” a right to an abortion or “repealed” §13-3603 when the legislature expressly stated the statute did no such things. The Arizona Supreme Court simply had no other legitimate decision to make in Planned Parenthood v. Mayes.

While the court made the right decision based on the statutory law, importantly, it did not rule on the state and federal constitutional challenges made against §13-3603. Instead, it sent the case back to the trial court to consider them. Thus, the Arizona Supreme Court’s decision is probably not the final word on this matter.

Lying About the Law to Win an Election

The Fake News Media and Democrats kicked into high gear to politicize the decision. Arizona Attorney General Kris Mayes issued a statement calling it “unconscionable and an affront to freedom.” (This is a particularly disturbing and inappropriate statement from the state’s chief law enforcement officer, even one as illegitimate as Mayes.) Cheryl Bruce, campaign manager for a group seeking to amend the state constitution by adding to it the right to abortion, called the decision a “devastating outcome for Arizonans” based on a “near-total ban” that was “on the books … before women even had the right to vote or participate in our democracy.”

The campaign to get the pro-abortion ballot measure on the ballot in November already claims to have more than 500,000 signatures, which is more than enough to qualify. Clearly, the supporters of the measure feel buoyed by the Arizona Supreme Court’s decision and expect the issue to improve turnout among abortion-rights voters. The endless hyperbolic, biased, free press from the Fake News Media will undoubtedly help their efforts.

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The proposed ballot measure would recognize a “fundamental right to abortion” and subject any law limiting access to abortion before “fetal viability” to the highest level of judicial review possible (meaning any effort by the legislature to limit abortions would likely not survive judicial review). The measure allows for abortions after “fetal viability” if necessary to “protect the life or physical or mental health of the pregnant individual.” “Fetal viability” itself, in the proposed ballot measure, is tied to the “judgment of a treating health care professional and based on the particular facts of the case.”

These provisions will likely render abortion available whenever a healthcare provider chooses to proclaim one is needed if the ballot measure passes. If you read the entire measure linked above, you may also notice the woke leftist transgender nonsense referring to “pregnant individuals” rather than “pregnant women”; this will give you a good understanding of the type of leftists behind the ballot initiative.

Are Unborn Babies a Millstone Around Our Necks?

Nevertheless, the political implications of the issue are huge. Arizona’s federal representatives are facing reelection in November, as well as one U.S. Senate seat and the Arizona State House and Senate races. Two Arizona Supreme Court justices are also up for retention, including Justice Kathryn H. King, who voted with the majority in Planned Parenthood v. Mayes. The left will use this issue to raise turnout in an effort to flip as many of these races as possible and to pass the pro-abortion ballot initiative. The Fake News Media will be willing accomplices framing the narrative and reporting on the issues in what amounts to in-kind campaign contributions to the Democrat Party.

Election losses on abortion issues, including the rejection of a ballot initiative to remove abortion rights from Kentucky’s constitution, along with the election of a far left pro-abortion candidate to the Wisconsin Supreme Court in 2022, have conservatives concerned about the impact the Arizona Supreme Court’s decision will have on the state’s elections this fall.

Already, Republican candidates in Arizona are distancing themselves from it. U.S. Senate candidate Kari Lake issued a public statement voicing her opposition to the ruling and “calling on Katie Hobbs and the State Legislature to come up with an immediate common-sense solution that Arizonans can support.” Lake, as well as former President Donald Trump, came out against a federal abortion ban, citing the issue as one Hobbs returned to the states. Of course, reverting to states’ rights is always a safe move for conservatives, since small government is a bedrock principle of modern conservatism. (Voters in Arizona, home of the late Senator Barry Goldwater, will be well familiar with this principle.)

Pro-life advocates in Arizona will need to mobilize every conceivable asset and bring every available resource to bear to defend the rights of the unborn this fall. Time will tell the outcome, but to borrow from William Shakespeare, if “what’s past is prologue,” the left plans to ride the abortion wave to victory in November.


Daniel R. Street is an attorney with more than 25 years of litigation experience. He is the author of the Fake News Exposed about Trump book series. Follow him on Substack for more of his work.

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