Kris Mayes wants the AZ Supreme Court to put its abortion ruling on hold until September

Arizona Attorney General Kris Mayes on Tuesday requested that the state Supreme Court pause its ruling that reinstated a near-total abortion ban from more than a century ago, saying that her office is considering whether to take the case to the U.S. Supreme Court. 

“My office needs time to thoroughly evaluate these issues before deciding whether or not to ask the United States Supreme Court to review our state court’s decision,” Mayes wrote, in a statement accompanying the announcement of her most recent legal filing.

The request comes on the heels of a motion filed by the Democrat last week urging the high court to reconsider its decision to outlaw virtually all abortions. That motion was rejected without an explanation three days after it was filed, but it succeeded in pushing back the implementation of the near-total ban until June 27. 

Now, Mayes is asking the justices to delay their ruling by 90 more days until her office can decide whether to seek review from the U.S. Supreme Court, potentially moving the enforcement of the 1864 law even farther to early September.

In November, Arizona voters are expected to weigh in on a pro-abortion initiative that would enshrine the procedure as a right in the state Constitution. Since the state court’s ruling was released, Mayes, who ran on a campaign promise to protect abortion access, has repeatedly vowed to mobilize her office to delay the Civil War-era law’s implementation as long as possible.

What’s the argument? 

On April 9, the Arizona Supreme Court ruled that the 1864 law, which carries with it a 2 to 5 year prison sentence for doctors who perform an abortion for any other reason than saving a woman’s life, is once again the law of the land. The justices determined that it trumps a 15-week gestational ban from 2022. Part of the court’s reasoning for upholding the near-total ban was the state legislature’s long history of enacting anti-abortion laws, including one passed in 2021 that ascribes personhood to fetuses. 

But that law has been blocked by a federal judge, who ruled that it’s too vague and conflicts with the state’s existing definition of a person. Litigation on whether to keep that injunction in place, however, continues. Alliance Defending Freedom, an anti-abortion law firm, and GOP legislative leaders, who argued in favor of reviving the 1864 law, are advocating for the removal of the injunction holding it back. 

In her rejected motion to reconsider, Mayes excoriated the Arizona Supreme Court for basing its decision on a law that has both been frozen by a federal court and is still undergoing review. The federal judge in the case blocked the 2021 law and prohibited its enforcement against doctors, but the state Supreme Court, in using it to justify the revival of the 1864 law, directly undermined the federal judge’s ruling, according to Mayes. 

Writing on behalf of Mayes, Solicitor General Joshua Bendor criticized the justices for attempting to intervene in a federal case over which they have no power. 

“Nothing in Arizona law allows this Court to use unconstitutionally unclear text to guide judicial interpretation of other statutes, nor to position itself as a court of higher review regarding federal decisions,” Bendor wrote.

In a statement accompanying the announcement of the request, Mayes said the state Supreme Court’s decision violates multiple clauses of the U.S. Constitution, including one which upholds federal laws above all others, and another which protects the due process rights of all Americans. 

According to Mayes, the state Supreme Court’s ruling interfered with the ability of the parties in the case against the 2021 law, including a local abortion provider and the Arizona Medical Association, to receive a final court ruling. 

 “The Arizona Supreme Court’s decision in the 1864 case relied on a statute that a federal court has enjoined as unconstitutionally vague,” said Mayes. “This raises serious federal questions under the Due Process and Supremacy Clauses.”