The Arizona Supreme Court issued a shocking ruling last week that revived a moribund state law from 1864 that banned abortions unless necessary to save the life of the mother. That statute, which carries up to five years in prison for violations by both doctors and patients, is now the law of the land in Arizona.
Especially stunning is that the court simultaneously invalidated a 2022 law that protected abortion access in Arizona until 15 weeks of pregnancy (or earlier in the event of a medical emergency).
Yet the 4-2 Arizona Supreme Court majority can hardly be blamed for picking the old law over the new one — it was merely following the directives laid out by the U.S. Supreme Court. The manner in which Dobbs v. Jackson Women’s Health Organization killed Roe v. Wade means that, when it comes to abortion, the law — along with the tens of millions of American women and girls who are capable of becoming pregnant — will continue to be hijacked back to a time where women had few, if any, meaningful rights.
The irony here is twofold. The first is that the Texas law originally struck down in Roe banned abortions except to save the life of the mother. What Roe deemed unconstitutional is now the law again, this time in Arizona.
The second irony is that the Dobbs majority, in an opinion authored by Justice Samuel Alito, specifically ruled that “we … return the power” over how abortion may be regulated by the states “to the people and their elected representatives.” “Our decision returns the issue of abortion to those legislative bodies,” he further explained, “and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office. Women are not without electoral or political power.”
But here’s the thing: In 1864, not only was slavery still legal in many parts of America, but women could not vote anywhere, including in Arizona — which was not even a state yet. Women could not legally vote until the 19th Amendment gave them that right in 1920. They could — and did — vote in 2022, yet those votes were rendered meaningless by the Arizona decision, which nullified them in favor of those cast by a class of white men 160 years prior. Back then, those were the only people eligible to resolve “the basic legality of pre-viability abortions for all 330 Americans” through “their representatives in the democratic process in the States or Congress,” to borrow from Justice Brett Kavanaugh in his concurring Dobbs opinion.
The Arizona Supreme Court said it preferred the old law to the new one because of Dobbs: “In June 2022, the Supreme Court overturned Roe, thereby eliminating the federal constitutional right to abortion and returning ‘the authority to regulate abortion … to the people and their elected representatives.’” Because Dobbs intervened, the court essentially reasoned, the newer law from 2022 is now obsolete.
The Arizona court followed Dobbs’s lead in other ways. In that case, the Supreme Court majority unveiled a revised test for determining whether fundamental rights that are not specifically enumerated in the Constitution nonetheless exist: history and tradition. Because “abortion was criminal in at least some stages of pregnancy and was regarded as unlawful” around the time the 14th Amendment was ratified, Alito reasoned, under the history-and-tradition test, it enjoys no constitutional protection against government control now.
Inexplicably, Alito traveled as far back as 13th-century England to dispel the existence of abortion rights, citing a legal treatise by the English judge Henry de Bracton, who died in 1268. That’s 600 years before the 14th Amendment — which Roe v. Wade interpreted to protect a woman’s right to decide for herself without governmental coercion or punishment whether and when to have children — was even ratified. Against that backdrop, the Arizona Supreme Court’s focus on a law enacted shortly before the post–Civil War amendments, which included the 14th, seems downright modern.
But there’s more. The primary flaw in Alito’s reasoning was his utter disregard for the interests of women in the face of governmental intervention in family planning decisions. A rights-based legal question under the 14th Amendment’s Due Process or Equal Protection clauses typically identifies both sides of a scale — the individual’s interest on one side, and the government’s regulatory interest on the other — and then balances them. Roe and the cases that came after it gave weight to the woman’s side of things. Alito ignored that altogether, introducing in its place the interests of “fetal life,” which the Mississippi law that Dobbs upheld called an “unborn human being.”
Justice Stephen Breyer’s dissenting opinion, which was joined by Justice Sonia Sotomayor and Justice Elena Kagan, stated that the court “says that from the very moment of fertilization, a woman has no rights to speak of.” By taking women back to a time when they had no rights to speak of, the Arizona Supreme Court conformed to this aspect of the Dobbs decision, too.
Never mind that the very text of the 14th Amendment belies the notion that unborn humans are protected under the Constitution, which the Roe court rejected outright. The 14th Amendment reads: “nor shall any State deprive any person of life, liberty, or property, without due process of law.” Even if an unborn fetus is a “person,” a so-called “textualist” or “strict constructionist” of the Constitution cannot honestly deny that a woman qualifies. Because of six conservative justices, that no longer is the case.
Kimberly Wehle is author of “How to Read the Constitution — and Why.” Her forthcoming book, “Pardon Power: How the Pardon System Works — and Why,” is out in September. Follow her @kimwehle.
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