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Judges ruled old abortion law still applied and now they are in the crosshairs of left-wing activists
The uproar over the Arizona Supreme Court’s decision this past April to uphold the state’s 1864 abortion law has laid bare a profound misunderstanding of the judiciary’s role in our democracy. In April, the court ruled 4-2 (with one justice recused) that the old law’s complete ban on abortion, enacted when Arizona was still a territory, sprang back into place once the U.S. Supreme Court overturned Roe v. Wade in its June 2022 Dobbs decision. A 15-week restriction that the state legislature passed just ahead of that federal ruling didn’t supersede that earlier law, the state court found, using legal reasoning that wouldn’t have been remotely controversial if the underlying case had been about, say, insurance contracts.
The majority relied on clear language in the 2022 law saying that this new legislation didn’t "repeal, by implication or otherwise" the territorial ban. The court concluded that "the legislature made its intent known," in part through "an unwavering intent since 1864 to proscribe elective abortions." "The legislature has demonstrated its consistent design to restrict elective abortion to the degree permitted" before Dobbs overturned Roe.
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Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here. Tim Rosenberger is a legal fellow at the Manhattan Institute.
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