Post New

Arizon's Supreme Court ruled 4-2 to uphold an 1864 law that predates Arizona's statehood that bans all abortions, except those required to save the life of the mother. That means no exception for rape or incest and it means any doctor performing such abortions would face jail time.

Perhaps the most bizarre aspect of the AZSC's ruling is that they put their own ruling on hold and sent the case that drove it back to the appellate court to review the 1864 law's constitutionality. That seems to make ZERO sense. At both the state and federal level, trial courts judge facts, appellate courts judge mis-interpretations of the law in trial court against historical interpretations of the laws involved with the case and the state/federal supreme court has the latitude to ALTER existing interpretations of prior laws or synthesize new applications and interpretations of existing law based on evolving concepts of justice. In this case, if the AZSC believes the constitutionality of the law they are resurrecting is doubtful, THEY ARE THE SUPREME COURT IN CHARGE OF MAKING THAT DETERMINATION. Why waste the time sending the issue back for litigation at the appellate level? An issue of (state) constitutionality can ONLY be decided by the (state) Supreme Court itself.

This ruling and the subsequent "hot potato" reluctance to be seen having a hand in it or its impacts perfectly represents the hypocrisy on the issue of abortion on the part of conservatives. There is certainly a small portion of the American population that fervently beieves abortion is wrong and eliminating abortion is THE most important issue. I can respect their point of view, even though I do not share it. But there is a much larger contingent of "conservatives" who co-opted abortion as the perfect unwinnable leverage issue in politics to drive fundraising and turnout.

Prior to Roe, family planning and abortion rights were pretty much bi-partisan issues, with equal support from mainstream Democrats and Republicans. While Eisenhower opposed government funding of family planning and abortion as President, by 1964 Eisenhower and Truman served as hnorary co-chairs of Planned Parenthood in an effort to generate support. As the Roe case was making its way to the Supreme Court in 1972, access to abortion was a volatile issue in a Presidential election year and Nixon advisor Patrick Buchanan suggested President Nixon court Catholic voters by adopting a "pro-life" stance. Nixon of course despised Catholics as much as he despised any other demographic but was so eager to win a landslide, he adopted the stance which helped cement that landslide he wanted in November 1972. When the Roe decision was issued in January 1973, Republican Party support for "pro-life" became a fixture in its platform. At that time,

By 1972, Gallup pollsters reported that 64% of Americans agreed that abortion should be between a woman and her doctor. Sixty-eight percent of Republicans, who had always liked family planning, agreed, as did 59% of Democrats.

https://www.palmbeachpost.com/story/opinion/column...

At that time and ever since, Republicans have viewed abortion as a perfect wedge issue. Perfect because the issue drives passion. Perfect because the issue drives donations. Perfect because no one thought abortion would be removed as a right after having been granted via Roe v Wade five decades ago so the issue could always be mined for money and angst.

That larger contingent of opportunistic conservatives could not imagine the success that would be found stuffing the US Supreme Court with actual anti-abortion fanatics, via both the luck of the draw in Supreme Court vacancies and blatant, unethical manipulation of that draw by blocking appointments in the last year of the Obama Administration. Now those fanatics made the dream of the fanatics reality and have thus exposed the opportunistic conservatives for the moral hypocrits they are. Those opportunistic conservatives are now stuck holding the bag on a fiercely unpopular outcome that is bringing this issue to a boil in a Presidential election year that may result in conservatives not only failing to regain the Presidency but failing to hold the House as well.


WTH

Speaking of fanatics.... good god-fearin' Zonas awaiting the court's ruling. Hard to believe this is America in 2024, but here we are.



https://packaged-media.redd.it/bbhk2a1abntc1/pb/m2...

I don't know if Albaby has reviewed the decision, but I am under the impression that they ruled the law is still valid in a non-Rowe world, even though it was passed decades before statehood. If it's more than that, I would be interested. So now it's up to the legislature and governor to change (or not change) that law. Though I suspect there will be a lot of pressure to change it. I'm sure Hobbs would sign a bill loosening those restrictions.

We have a lot of old laws, as most states do. Another of our laws that seems out of date is that it is illegal to hunt camels in AZ. Still a valid law, but not really an issue today.

Perhaps the most bizarre aspect of the AZSC's ruling is that they put their own ruling on hold and sent the case that drove it back to the appellate court to review the 1864 law's constitutionality. That seems to make ZERO sense.

From what I can glean from the opinion, this is an artifact of the unusual procedural circumstances of Arizona's law and Roe/Dobbs.

TL;DR - the only issue that was in front of the AZ Supreme Court was a limited, statutory interpretation question of whether AZ's later adopted 15-week ban modified or restricted or otherwise invalidated the old 1864 law. No other constitutional issues were yet before the Court, so no other constitutional issues were decided.

Longer answer: so back in the 1970's, there was a bunch of litigation over whether Arizona's laws prohibiting abortion were constitutional. Those lawsuits alleged a number of different constitutional defects in the laws, and they were all pending resolution when Roe was established. Roe put an end to all that litigation, obviously. The Arizona Court of Appeals (their intermediate court, which is where the case was at the time) issued a permanent injunction against enforcing the law. Their holding was, in a nutshell, "because Roe no state official can enforce this law."

Flash forward to Dobbs, and Arizona moved to have the permanent injunction released. Planned Parenthood (the original plaintiff) opposed the motion to release the permanent injunction. They conceded that the original basis for the injunction (Roe) was gone, but argued that because AZ had subsequently adopted the 15-week ban, that law was a modification of the 1864 law and therefore should be what governs. The AZ Supreme Court rejected that argument.

Because of the weird procedural posture - arguing over the 1973 injunction - the constitutionality of the underlying law was not actually before the AZ Court. So now, everybody kind of "zaps back" to their 1973 pre-Roe positions - the law exists, but all of the constitutional (and other?) arguments against it that were mooted by Roe are now available for the parties to litigate. Essentially, the 50-year "time out" on this issue that was imposed by the SCOTUS is now over, and the parties are back where they were.

Which is why the Court's ruling didn't foreclose someone raising a constitutional objection to the law, and why the Court granted a stay so that the parties would have time to submit those arguments (and requests for temporary injunctions) to the lower courts.

Forgot the link:

https://static01.nyt.com/newsgraphics/documenttool...

Adding historical context...

Letters from an American - History professor Heather Cox Richardson:

https://heathercoxrichardson.substack.com/p/april-...

The Arizona law that will begin to be enforced in 14 days was written by a single man in 1864. 

In 1864, Arizona was not a state, women and minorities could not vote, and doctors were still sewing up wounds with horsehair and storing their unwashed medical instruments in velvet-lined cases. 

And, of course, the United States was in the midst of the Civil War.

In fact, the 1864 law soon to be in force again in Arizona to control women’s reproductive rights in the twenty-first century does not appear particularly concerned with women handling their own reproductive care in the nineteenth—it actually seems to ignore that practice entirely. The laws for Arizona Territory, chaotic and still at war in 1864, appear to reflect the need to rein in a lawless population of men.

The 1864 Arizona criminal code talks about “miscarriage” in the context of other male misbehavior. It focuses at great length on dueling, for example—making illegal not only the act of dueling (punishable by three years in jail) but also having anything to do with a duel. And then, in the section that became the law now resurrected in Arizona, the law takes on the issue of poisoning. 

In that context, the context of punishing those who secretly administer poison to kill someone, it says that anyone who uses poison or instruments “with the intention to procure the miscarriage of any woman then being with child” would face two to five years in jail, “Provided, that no physician shall be affected by the last clause of this section, who in the discharge of his professional duties deems it necessary to produce the miscarriage of any woman in order to save her life.” 

The next section warns against cutting out tongues or eyes, slitting noses or lips, or “rendering…useless” someone’s arm or leg.

Adding historical context...

Oh gosh, if you want historical context: The law was passed by a legislature led by William Claude Jones. Jones, among other things, married 5 times, including to a 12 year old. Got a 14 year old pregnant. Abandoned more than one of them. Moved from state to state as he was dis-reputed in each, leaving behind a trail of tears, if I may misappropriate a common piece of vernacular.

Here’s a trifling paragraph from a disturbing history:

 

His next wife was a girl whose name was believed to be Maria v. del Refugio, 
writes L. Boyd Finch, the author of the journal article. New Mexico’s delegate 
to Washington, Miguel Otero, was bothered by the union. He “declared that the 
bride was twelve years old,” Finch writes, “and that Jones had ‘abducted’ her.” 
Otero petitioned President James Buchanan to fire Jones for the moral failing, 
but Jones resigned instead.  

Gift link:
https://wapo.st/3TWUY8z

A real piece of work, that, but then in the 1800’s such cavorting with underage women and other sorts of behavior horriblese wasn’t seen with the same eyes as today. Which makes it all the more wonderous that the stacked-and-loaded Arizona Supreme Court thought reinstituting a law from that era, passed by a legislature led by this man, was a good idea.

A real piece of work, that, but then in the 1800’s such cavorting with underage women and other sorts of behavior horriblese wasn’t seen with the same eyes as today. Which makes it all the more wonderous that the stacked-and-loaded Arizona Supreme Court thought reinstituting a law from that era, passed by a legislature led by this man, was a good idea.

Assuming that was a witty coinage and not a typo: well done! In the mold of "noblesse oblige" it seems.

Which makes it all the more wonderous that the stacked-and-loaded Arizona Supreme Court thought reinstituting a law from that era, passed by a legislature led by this man, was a good idea.

To clarify, the AZ Court did not reinstitute the old law - much less because they thought it was a good idea.

The only action they took was to: i) invalidate the 1973 injunction holding that Roe prohibited the enforcement of the law; and ii) hold that the later-adopted 15-week abortion ban did not modify the prior law. The first action was unequivocally correct, after Dobbs. The second action was very likely correct, given the precedent on statutory construction in Arizona outlined in the opinion.

Lots of laws are very, very old - each state's murder statute, for example, was probably first enacted a century or more ago. It will have been tweaked and recodified over the decades, like the AZ statute, but it will have first been put in place way back in the day. The fact that it is very old, or might have been first enacted by people who are horrible by modern lights, doesn't make it legally deficient.

So it's really not all that surprising that where there's a law (even an older law) that was enjoined (but never repealed) based on Roe, that once Roe was overruled that the law would now be enforceable. While we can (correctly) be appalled at the situation created by Dobbs in Arizona, that doesn't mean that the AZ Court make any error in holding that this is the legal outcome once Roe was struck down.

Post New

US Policy FAQ

---

Contact Shrewd'm
Contact the developer of these message boards.