PHOENIX — The Arizona Supreme Court has agreed to delay enforcement of its decision upholding the state’s 1864 abortion ban until Sept. 23, virtually guaranteeing its ruling will never take effect.
The order, signed Thursday by Chief Justice Ann Scott Timmer, comes just days after the U.S. Supreme Court agreed to give Attorney General Kris Mayes until that same date to decided whether she wants to appeal the state court ruling issued in April which concluded that the older law, which outlaws abortion except to save the life of the mother, supersedes a 2022 law allowing abortion until 15 weeks of pregnancy.
In a legal filing, Joshua Bendor, the state solicitor general in Mayes’ office, told the U.S. Supreme Court that ruling by the state justices was wrong.
He contends they improperly relied on a section of state law that a federal judge had enjoined.
What makes that delay in the effective date of the Arizona Supreme Court ruling authorized by Timmer significant is that state lawmakers voted in May to repeal the old law — leaving only the 15-week statute.
That change takes effect Sept. 14.
And if that happens, there is no need for an appeal — and no need for the U.S. Supreme Court to weigh in.
Put simply, the whole legal dispute of whether the Arizona Supreme Court erred in ordering the old law reinstated becomes legally moot.
All this is occurring against a backdrop of efforts by Arizona Right to Life to keep voters from deciding whether to expand the right of abortion in the state even farther.
At a hearing Friday, Jennifer Wright, the group’s attorney, acknowledged that more than 820,000 signatures had been turned in on petitions to put Proposition 319 on Arizona’s ballot in November.
That measure would enshrine the right of abortion in the Arizona Constitution. It also would allow the procedure without state interference up until fetal viability; beyond that point abortions would be permitted if “in the good faith judgment of a treating health care professional (it) is necessary to protect the life or physical or mental health of the pregnant individual.’’
But Wright told Maricopa County Superior Court Judge Melissa Julian that the 200-word description legally required to be on the front page of every initiative petition, failed to inform people about all the effects of what would happen if the measure is approved.
These include that it would override various existing abortion laws, something she said would override everything from who can perform an abortion to parental consent laws.
“We can never know how many signatories would have decided not to sign if they knew the act created an unrestricted and unregulated constitutional right to abortion,’’ Wright said.
“We know that people support abortion,’’ she said. “What we don’t know if people understood the breadth of the initiative and whether or not they would have signed it if they understood the principle provisions and the basic thrust.’’
And Wright specifically objected to the fact that the initiative uses — but the summary does not — the phrase “treating’’ in the description ahead of “health care professional.’’
“By omitting that word they seem to be obscuring the fact that the treating was likely the abortionist providing — and benefiting from — engaging in that procedure.’’
Attorney Austin Yost, representing Arizona for Abortion Access, countered that the description does describe the key provisions as required by law: that there is a fundamental right to abortion, the scope of that right both before and after fetal viability, and that people cannot be penalized for aiding someone in exercising that right.
He said Arizona Right to Life, in trying to get the measure removed from the ballot, is misstating what the initiative does or does not do in hopes that voters will reject it in November.
“It has a right to express those views in the political arena and the court of public opinion,’’ Yost told the judge. “But it has no claim for relief in a court of law.’’
Put another way, he said Arizona Right to Life is using the lawsuit and its claims about the legal sufficiency of the description to instead mount a public relations campaign against Proposition 319.
“I think this only proves that plaintiff will say or do anything to try to thwart the will of Arizona’s voters,’’ Yost said.
Julian promised a decision by Monday on whether the measure can appear on the Nov. 5 ballot.
Whatever she rules is virtually certain to be appealed to the Arizona Supreme Court.
In the meantime, abortion will remain legal in Arizona, at least for the first 15 weeks of pregnancy.
It started with Bendor, on Mayes’ behalf, approaching the U.S. Supreme Court.
Mayes lost the legal battle at the Arizona Supreme Court when the majority there decided that the 1864 statute remained in effect despite that 15-week limit approved in 2022.
She contends, however, the state justices got it wrong, saying they relied on a different state statute in reaching their decision.
It says that the laws of Arizona have to be interpreted to acknowledge that an unborn child, at every stage of development is entitled to “all rights, privileges and immunities available to other persons, citizens and residents of this state.’’ The only limit would be the U.S. Constitution and U.S. Supreme Court rulings.
Only thing is a federal judge in a different case — one brought by doctors involving a separate challenge to a statute on abortions and fetal defects — preliminary enjoined enforcement of that law about unborn children and their rights while that case goes on. He declared it was likely void for vagueness.
And if the Arizona Supreme Court illegally relied on an enjoined statute in reaching its decision in April, that would give Mayes a reason to appeal their ruling to the U.S. Supreme Court.
But there are time limits for Mayes to file such an appeal, known legally as a “petition for writ of certiorari,’’ before it is too late.
So Bendor first filed paperwork with the nation’s high court saying it would be a possible waste of time for Mayes to file a full-blown appeal over a law that, absent some extraordinary action, will cease to exist on Sept. 14. Justice Elena Kagan, acting for the full court, agreed, extending the time to file that petition until Sept. 23.
Now, armed with Kagan’s extension, Bendor asked the Arizona Supreme Court to agree to the same effective date of its order.
“Good cause exists here,’’ he told the state justices, saying that going ahead with a full blown petition to the U.S. Supreme Court — an action that would have automatically delayed the effective date of the state court decision — has to be in circumstances “under which such a petition might become moot and therefore needlessly consume party and court resources.’’
Chief Justice Timmer agreed, signing the order delaying implementation of the April ruling until Sept. 23.
