Anti-abortion extremists are seeking to use the Arizona Supreme Court as a time machine that reverts Arizona law on abortion back in time more than 120 years. If the state supreme court were to accept the challengers’ arguments (which have no legal precedent) and reverse the appeals court’s ruling, all abortions would be illegal in Arizona except in cases to save the life of the person requiring the abortion. Anyone who performs an abortion would face prison time.

Last December, the Arizona Court of Appeals held that all of Arizona’s abortion laws—both the near-total 1901 ban and more recently passed laws—must be harmonized (that is, read in a way that avoids conflict between the provisions), and that abortion is legal up to 15 weeks when provided by licensed physicians in compliance with Arizona’s other laws and regulations. Anti-abortion doctor Eric Hazelrigg then intervened in the case as “guardian ad litem for all unborn infants in the State of Arizona” and requested that the state supreme court review that decision.

That is why legal scholars submitted their brief urging the Arizona Supreme Court to uphold the lower court ruling and not set back the clock on Arizona abortion law to 1901. As the scholars explain in their brief, overturning the lower court ruling would defy fundamental principles of statutory interpretation—the process by which a court interprets legislation to see how it applies—and ignore a half-century’s worth of abortion policy updates made by the Arizona legislature. It would leave Arizona’s physicians wondering about whether their compliance with some laws will expose them to criminal liability under other laws.

Democracy Forward is representing the legal scholars as part of our mission to disrupt anti-democratic actors who seek to use the courts to reverse or stop social progress. 

The group of legal scholars who submitted this brief includes leading experts in statutory interpretation, Arizona law professors, and scholars of family law. They are: 

• Barbara Atwood, Mary Anne Richey Professor Emerita of Law and Co-Director, Family and Juvenile Law Certificate Program, University of Arizona, James E. Rogers College of Law
• Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor of Law, University of California, Berkeley School of Law
• Greer Donley, Associate Dean for Research and Faculty Development July 2023, John E. Murray Faculty Scholar, and Associate Professor of Law, University of Pittsburgh School of Law
• Victoria Nourse, Ralph V. Whitworth Professor in Law, Georgetown University Law Center 
• Toni Massaro, Regents Professor, Professor of Law and Milton O. Riepe Chair in Constitutional Law Emerita, University of Arizona, James E. Rogers College of Law
• Albertina Antognini, James E. Rogers Professor of Law, University of Arizona, James E. Rogers College of Law