For those who actually watched oral arguments this morning, and has a law degree, and has read the statutes, and the opinions, and the pleadings, I am probably wasting my breath. But for the MANY, MANY more who are waiting for someone to put this train wreck in simple terms, this is for you.
This is all either terrible for Arizona’s women and doctors, or much, much worse.
Having read the summaries, the statutes, and the lower court opinion and listened to the oral arguments, this is what I have gleaned in the simplest terms: Both sides recognize that now that Roe is overturned, Arizona’s statutes determine the legal status of abortion procedures in Arizona. This appeal will determine how the current statutes will be “harmonized,” as done in the opinion of the lower court being appealed, or as the appellants suggest.
The Anti-Abortionists want the Court to read the statutes to mean that under the Title 13 criminal statute (often termed the Territorial Law) all abortions are criminalized for everyone, including doctors, at ANY stage of pregnancy, except to save the life of the mother, except after 15 weeks gestation, in which case the life of the mother must be imminently imperiled for an abortion procedure to not constitute a criminal act under provisions of Title 36 health codes. So, in the Appellants’ view, after 15 weeks a woman not only has to be in mortal peril, she has to be imminently about to die to qualify for an abortion. Also, because the penalties prescribed under the two statutory regimes in the Criminal Code and the Health Code are different, it would be up to the prosecuting authority which to apply if someone is prosecuted for an abortion care crime in their jurisdiction. You might get a felony conviction and a couple years in the slammer, or you might get a felony conviction and a lighter sentence, or even probation. Luckily, I detected a good deal of skepticism against the appellants’ interpretation in the questioning of even those Justices inclined against abortion rights. But such Kremlinology is seldom an accurate forecast, so I’m not taking any bets on the ultimate outcome. To be perfectly frank and clear: I think this is an utterly insane interpretation of the existing statutes.
The Pro-Abortion Rights side, which now includes the State of Arizona as represented by AZAG Mayes and PCA Conover, want the Court to affirm the less draconian interpretation of statutes by the court below. That opinion interprets the disparate abortion statutes to allow physicians to perform abortion before 15 weeks of gestation without a criminal penalty under almost all circumstances, but also leaves in place the complex and exacting statutory regime established by the state legislature over the years between Roe and its overturning. The result would be that only under limited circumstances and exceptions, including medical emergencies, would abortions be available after 15 weeks of gestation by Arizona physicians, and violations of those limits would constitute crimes. As for anyone other than a physician performing an abortion before 15 weeks, I guess you are looking at a few years in the slammer no matter what.
So, take your pick: awful, or inhumanely awful.
I think that’s about as simply as one can summarize the choice before the Court. The AZ Supreme Court could, of course, do something other than what the parties are requesting in the context of the Arizona Constitution, which is not really a subject the parties are arguing about. I find it bewildering and infuriating that this is where we are on reproductive healthcare rights for women in Arizona: I can’t wait for the 2024 election when Arizona voters – who overwhelmingly reject all this restrictive nonsense the GOP has erected in the shadow of Roe – will have their voices heard by voting in the Arizona Abortion Rights for Arizona initiative by huge margins.
If anyone knowledgeable about the litigation sees any glaring error in this summary, please leave a comment with your argument.
Yeah. Oral arguments are an acquired taste. Only if you are as fully immersed in the case background, briefs, and case law as the litigants can you get much out of watching. There is seldom anything like what most normal humans would consider an ‘argument’: mostly it is the opportunity for the judges to ask questions of the attorneys. I’ve never prepared anything more than an outline for oral arguments in an appeal because you will never get through a prepared statement. The best you can hope for is to make your main points and try to be ready for hard questions about your position.
I managed to bear roughly 30 minutes of the convoluted oral arguments before I clicked away. I’ve never been more thankful for not seriously contemplating a career in law.