MORE JUDICIAL DISGRACE

Many people who call themselves "conservatives," who urge the reduction of the role of government when it comes to education, foreign aid, national security, NATO, covid masks, oil and gas drilling, corporate income tax, the environment, etc, are nevertheless determined to have the government play a very large role, indeed a dominant one,  in a woman's decision about her reproductive choices.

This is hardly new. A few months ago, the headlines featured an Alabama Supreme Court decision sustaining a ban on abortion in that state. Prominent was an opinion asserting that God had placed his stamp on all "unborn children," including frozen fertilized eggs being stored in connection with planned IVF medical procedures. Even some of the anti-abortion crowd was stunned by the decision, and the legislature made plans to make some changes, at least concerning IVF procedures. Somehow, they concluded that God permitted that much.

(My previous blog, consisting of a faux decision mocking the Alabama court opinion, so far has a readership numbering more than quadruple the greatest number of readers of any prior blog, and the number is still climbing.)

This past week, the Republican-dominated Arizona Supreme Court submitted its own demonstration of "conservative judicial writing" by sustaining the enforcement of an 1864 law adopted by the territory of Arizona that effectively banned virtually all abortion. The territorial law imposed a 2-5 year prison sentence upon "every person" who "caused to be used any medicinal substance or instruments ...to procure a miscarriage," except for a physician who acts to save a woman's life. 

The Arizona Supreme Court decision did not mention that at the time of the enactment of the 1864 law i) the age of consent for female sexual intercourse was 10 years old, ii) Arizona was not a state at that time, and iii) women did not have the right to vote.

The ruling is even more outrageous when one parses through the tortured language used by the majority opinion in describing the AZ statutory calendar. Here it is:

1864: Enactment of territorial law banning all abortion, except when the mother's life is in danger.

1973: Roe v Wade: Abortion before "viability" (approximately 24 weeks) was Constitutionally protected. That, of course, nullified the 1864 law,

 June, 2022: Dobbs reverses Roe, holding abortion regulation is now entirely up to state legislatures. This, says the AZ courts, revives  the 1864 ban.

September, 2022:  Arizona enacts statute punishing "physicians" who perform abortions later than 15 weeks gestation, except when mother's life is in danger. 

December, 2022: AZ intermediate appellate court holds i) Dobbs did indeed revive the 1864 law, but the September, 2022 statute protects "physicians" who perform abortions up to 15 weeks, nevertheless ii) pursuant to the revived 1864 law, it remained a crime for any other person to cause an abortion. I,e., physicians" had a 15-week immunity period, but no other "person" did."

April, 2024: AZ Supremes vacate the appellate court ruling and hold both the 1864 and the 2022 abortion statutes are valid, but in an unambiguously anti-abortion way: The Court issued a specific warning to physicians: pursuant to the 1864 law, abortion is still illegal and physicians face 5 years in jail if they violate the 1864 law. (There is no 15 week immunity period in the 1864 law.) Moreover, the 2022 post-Dobbs 15-week law is also in force, but only to the extent physicians face additional prison time for abortions performed after the 15 week limit!  I do not exaggerate. To be precise, here's a quote from the ruling:

"In light of this Opinion, physicians are now on notice that all abortions, except those necessary to save a woman’s life, are illegal, see § 13-3603, and that additional criminal and regulatory sanctions may apply to abortions performed after fifteen weeks’ gestation.'' 

Two days later, midst cries of "Shame" on the House floor, Republican  leadership shut down the legislature for a week. One hopes recess was for prayer, but I doubt it.

A bientot.

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