Ducey’s hacks wilfully misread the law to resurrect the 1864 abortion ban

You may have seen some apologists for Republican abortion bans — indeed, you might have seen someone pushing this talking point through bare assertion here — asserting that the Arizona Supreme Court had no choice but to declare the abortion ban the territorial government representing fewer people than attended yesterday’s game between the San Jose Sharks and Calgary Flames enacted during the Lincoln administration enforceable because the Arizona legislature included an explicit trigger provision in the 2022 15-week ban. This is absolutely false. As the [Republican-nominated] dissenters pointed out, this represents an attempt to conflate “construction provisions” instructing the courts how to resolve ambiguities with actual clauses in the legislation itself. But because the 2022 statute unambiguously supersedes the 1864 ban, the construction provisions are moot:

The two dissenting justices — Vice Chief Justice Ann Timmer, in an opinion joined by Chief Justice Robert Brutinel — argued that this statute is unambiguous. Citing a pre-Roe decision of the U.S. Supreme Court interpreting D.C.’s then-existing abortion ban, Timmer wrote that “abortions falling within” an exception to a ban are “legal,” concluding that Arizona’s 15-week ban “clearly permits physicians to lawfully perform abortions that are not expressly outlawed.”

The dissenting justices, both appointees of former Gov. Jan Brewer, argued, essentially, that that should be the end of it, as to the determination of what the 2022 law means. Only then, they argued, should the court figure out how, after Dobbs v. Jackson Women’s Health Organization, this law interacts with the near-total ban.

The majority, however, goes about the case in essentially the reverse way, holding that the language of the 2022 law is ambiguous about whether it protects abortion at all, in part because it must be considered that it was passed in light of Roe. This then opens the project of figuring out what the law means to considering evidence beyond the text of the statute to decide what the statute means.

Having found the text of the 2022 law ambiguous, the majority points to a “construction provision” of the 2022 law, which includes two key parts. First, it states that the law doesn’t “create … a right to an abortion,” and second, it doesn’t “repeal, by implication of otherwise,” the near-total abortion ban.

Now, that does initially sound pretty convincing. But, only if read alone and as presented by the majority. As Timmer made clear in dissent, if the law isn’t ambiguous, the court shouldn’t be looking at anything else, including the “construction provision.” The majority only got to that point, Timmer explained, by reading ambiguity into the law by claiming that its text could be as “merely acknowledg[ing] the existence of a contemporaneous federal constitutional right to abortion under Roe at the time of its passage.”

That is not how statutory interpretation works. You can’t read ambiguity into the plain text of a statute by saying that something happening outside of the text could have been the reason for that text.

But that was exactly what Lopez did, writing in the majority opinion that — now that Roe is gone — “any interpretation of the [15-week ban] statute that ignores or minimizes the impact of Dobbs’ disavowal of a federal constitutional abortion right runs headlong into the construction provision” of the 15-week ban.

In other words, the Arizona Supreme Court looked outside of the text to Roe and Dobbs to create ambiguity, then looked outside of the text again to the “construction provision” to resolve the ambiguity.

The Ducey appointees declared an anachronistic abortion ban enforceable not because the text of the statute required them to or even because the text of the statute plausibly allowed them to, but because in contemporary Republican jurisprudence if the text of the statute interferes with the policy preferences of the Freedom Caucus so much worse for the statutory text.