Planned Parenthood Arizona, Inc. v. Mark Brnovich

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
PLANNED PARENTHOOD ARIZONA, INC., SUCCESSOR-IN-INTEREST TO
PLANNED PARENTHOOD CENTER OF TUCSON, INC.;
LAURA CONOVER, PIMA COUNTY ATTORNEY,
Appellants,
v.
MARK BRNOVICH, ATTORNEY GENERAL OF THE STATE OF ARIZONA,
Appellee,
and
ERIC HAZELRIGG, M.D., AS GUARDIAN AD LITEM OF UNBORN CHILD OF
PLAINTIFF JANE ROE AND ALL OTHER UNBORN INFANTS SIMILARLY SITUATED,
Intervenor.
No. 2 CA-CV 2022-0116
Filed December 30, 2022
Appeal from the Superior Court in Pima County
No. C127867
The Honorable Kellie L. Johnson, Judge
AFFIRMED IN PART; REVERSED IN PART
COUNSEL
Coppersmith Brockelman PLC, Phoenix
By D. Andrew Gaona
and
Planned Parenthood Federation of America
By Sarah Mac Dougall, Pro Hac Vice, New York, New York and Diana O.
Salgado, Pro Hac Vice, Washington, D.C.
Counsel for Appellant Planned Parenthood Arizona, Inc.
PLANNED PARENTHOOD OF ARIZ. v. BRNOVICH
Opinion of the Court
Laura Conover, Pima County Attorney
By Samuel E. Brown, Chief Civil Deputy County Attorney and
Jonathan Pinkney, Deputy County Attorney, Tucson
Counsel for Appellant Laura Conover, Pima County Attorney
Mark Brnovich, Arizona Attorney General
By Michael S. Catlett, Linley Wilson, and Katlyn J. Divis, Assistant
Attorneys General, Phoenix
Counsel for Appellee
Alliance Defending Freedom, Scottsdale
By Mark A. Lippelmann and Kevin H. Theriot
Counsel for Intervenor
John J. Jakubczyk, Phoenix
Counsel for Amicus Curiae Charlotte Lozier Institute
OPINION
Chief Judge Vásquez authored the opinion of the Court, in which Judge
Swann1 concurred and Presiding Judge Eckerstrom specially concurred.
V Á S Q U E Z, Chief Judge:
¶1 Dating back to its territorial days, Arizona has had a near-
total statutory ban on abortion. But for almost five decades, enforcement
of the ban was enjoined, and it was declared unconstitutional as to all
persons. This changed on June 24, 2022, when, in Dobbs v. Jackson Women’s
Health Organization, ___ U.S. ___, ___, 142 S. Ct. 2228, 2279 (2022), the United
States Supreme Court held there is no constitutional right to abortion.
Arizona Attorney General Mark Brnovich then filed a motion for relief from
judgment in the trial court, asking it to set aside the permanent injunction
prohibiting criminal prosecution under A.R.S. § 13-3603. The court granted
1The Hon. Peter B. Swann, a retired judge of this court, is called back
to active duty to serve on this case pursuant to orders of this court and the
supreme court.
2
PLANNED PARENTHOOD OF ARIZ. v. BRNOVICH
Opinion of the Court
the motion, and Planned Parenthood of Arizona, Inc. (PPAZ) and the Pima
County Attorney’s Office (PCAO) have challenged the court’s order,
arguing § 13-3603 should be harmonized with more recent statutes
regulating the practice of abortion, codified in Title 36.
¶2 The question at the core of this appeal is whether a licensed
physician who performs an elective abortion in conformity with more
recent statutes in Title 36 is nevertheless subject to prosecution under
§ 13-3603. Because Title 36 permits physicians to perform elective abortions
under certain circumstances, the answer is no.
Factual and Procedural Background
¶3 In 1971, the Planned Parenthood Center of Tucson and several
physicians challenged the constitutionality of Arizona abortion statutes,
including A.R.S. § 13-211, now renumbered as § 13-3603. 2 The Arizona
Attorney General and Pima County Attorney were named as defendants.
The trial court granted declaratory relief in favor of the plaintiffs and
permanently enjoined the defendants from enforcing the statutes. After the
Supreme Court decided Roe v. Wade, 410 U.S. 113 (1973), we affirmed the
injunction but modified it to reflect that “the statutes in question are
unconstitutional as to all.” Nelson v. Planned Parenthood of Tucson, Inc., 19
Ariz. App. 142, 152 (1973).
¶4 Since 1973, the Arizona legislature has enacted numerous
laws regulating abortion. Most recently, it enacted A.R.S. §§ 36-2321 to
36-2326 (the 15-week law), which places requirements on abortion services
by licensed physicians up to fifteen weeks, generally prohibits the abortion
of any fetus with a gestational age of fifteen weeks or more, and creates
reporting procedures for medically necessary abortions performed by
licensed physicians after fifteen weeks. 2022 Ariz. Sess. Laws, ch. 105,
§§ 1-5. Currently, Arizona statutes relating to abortion are found in Title
36, see, e.g., A.R.S. §§ 36-2151 to 36-2164, 36-2301 to 36-2326, and A.R.S.
§§ 13-3603 to 13-3605.3 Title 36 includes both criminal and civil sanctions
21977 Ariz. Sess. Laws, ch. 142, § 99.
3Section 13-3603.01 provides for civil and criminal liability for
performing partial-birth abortions, while § 13-3603.02 provides penalties
for providing abortion for certain prohibited reasons such as sex or race
selection. Section 13-3605 creates criminal liability for, among other things,
advertising for abortion. These statutes are not at issue in this appeal.
3
PLANNED PARENTHOOD OF ARIZ. v. BRNOVICH
Opinion of the Court
for violations of the regulatory scheme, while § 13-3603 broadly prohibits
and criminalizes abortion, except to save the life of the pregnant woman.
¶5 In June 2022, the Supreme Court overruled Roe in Dobbs.
Brnovich then sought relief under Rule 60(b)(5) and (6), Ariz. R. Civ. P.,
from the injunction, asking the trial court to set it aside “as applied to A.R.S.
§ 13-3603.” 4 PPAZ, a successor-in-interest to Planned Parenthood of
Tucson, opposed the motion. The PCAO joined in PPAZ’s arguments.
They acknowledged that, in light of Dobbs, the injunction had to be
modified because it was based on Roe. But they argued the court should
“harmonize” all statutes “as they exist today . . . to make clear that § 13-3603
can be enforceable in some respects” but Brnovich and the PCAO should
be enjoined “from taking any action or threatening to enforce the provisions
of A.R.S. § 13-3603 with respect to abortions provided by licensed
physicians” under the regulatory scheme in Title 36.
¶6 The trial court granted the Rule 60 motion, concluding the
“legal basis for the judgment entered in 1973 has now been overruled,” and
vacated the order granting injunctive relief. The court declined PPAZ and
the PCAO’s request to address the interaction between § 13-3603 and
Arizona statutes enacted since the injunction, describing that undertaking
as “procedurally improper.” The court agreed with Brnovich that,
pursuant to Rule 60(b)(5), it was not permitted to consider anything other
than whether the constitutional principles forming the basis for the
injunction were still valid. This appeal followed.
Discussion
The Trial Court’s Limited Review Under Rule 60
¶7 We must first determine whether the trial court erred, as
PPAZ and the PCAO assert, by refusing to consider whether the injunction
should be modified in light of current law. Brnovich argues that the court
properly exercised its discretion in refusing to evaluate other changes in the
law beyond Dobbs. We conclude the court erred in limiting its review.
¶8 We generally review for an abuse of discretion a trial court’s
ruling on a motion for relief from judgment under Rule 60. Rogone v.
4Dr. Eric Hazelrigg was substituted as an intervenor and argued in
support of Brnovich’s motion. As to the issues we reach in this appeal,
Hazelrigg’s arguments largely parallel Brnovich’s. We therefore do not
separately address them.
4
PLANNED PARENTHOOD OF ARIZ. v. BRNOVICH
Opinion of the Court
Correia, 236 Ariz. 43, ¶ 12 (App. 2014). However, we review de novo the
interpretation of court rules, including the scope of a trial court’s authority
under Rule 60. See Duff v. Lee, 250 Ariz. 135, ¶ 11 (2020). Rule 60(b)(5)
permits a court to relieve a party from a final judgment if “it is based on an
earlier judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable.” Rule 60(b)(5) has “been used liberally
in reopening otherwise final court orders where there has been a change in
the law affecting substantial rights of a litigant.” Edsall v. Superior Court,
143 Ariz. 240, 243 (1984).
¶9 As noted above, the trial court concluded it lacked authority
to evaluate the state of the law beyond whether Roe was still in force. But
the inquiry is not solely whether some specific case, constitutional
provision, or statute supporting the original injunction is no longer valid.
Instead, the issue is whether the “legal landscape has changed,” Agostini v.
Felton, 521 U.S. 203, 216 (1997),5 and that determination cannot be made by
artificially narrowing the inquiry to only part of the current legal landscape.
“A court may recognize subsequent changes in either statutory or decisional
law.” Id. at 215 (emphasis added). Consequently, the court abused its
discretion by erroneously concluding it must limit its analysis here. 6
5Arizona’s Rule 60 is similar to the federal rule, and, thus,
interpretation of the rule by federal courts is persuasive. See Harper v.
Canyon Land Dev., LLC, 219 Ariz. 535, ¶ 6 (App. 2008).
6 Nothing in the cases cited by Brnovich precludes a trial court’s
consideration of how the law has changed in evaluating whether Rule 60
relief is warranted. See Horne v. Flores, 557 U.S. 433, 448, 453 (2009) (noting
particular value of Rule 60(b)(5) in evaluating “changes in the nature of the
underlying problem, changes in governing law or its interpretation by the
courts, and new policy insights” regarding longstanding injunctive relief
and criticizing intermediate appellate court for “confining the scope of its
analysis to that of the original order”); California v. EPA, 978 F.3d 708, 715-
16 (9th Cir. 2020) (declining to revisit factual equities when law has
changed). Brnovich additionally cites several cases for the proposition that
a party cannot “re-litigate legal or factual claims underlying the original
judgment.” That is not what PPAZ and the PCAO have requested—they
request only that any modification to the injunction reflect the whole of
current Arizona law. Finally, Brnovich asserts that PPAZ is somehow
bound by its argument in the pre-injunction litigation that § 13-3603 applies
to all persons. But, because the regulatory scheme found in Title 36 did not
exist at the time, PPAZ could not have raised this argument previously.
5
PLANNED PARENTHOOD OF ARIZ. v. BRNOVICH
Opinion of the Court
See Phx. City Prosecutor v. Lowery, 245 Ariz. 424, ¶ 6 (2018) (error of law
constitutes abuse of discretion). We now turn to the question the court
refused to consider.
Licensed Physicians Who Perform Abortions Under Title 36
¶10 PPAZ argues that, by lifting the injunction entirely, the trial
court’s ruling causes “contradicting laws to take effect” and we should
“harmonize[]” the statutes to conclude the abortion regulations in Title 36
govern. The PCAO similarly contends § 13-3603 cannot stand
“unmodified” without conflicting with provisions in Title 36. They ask that
we remand the case to the trial court to enter a “modified judgment”
“making clear” that § 13-3603 does not apply to licensed physicians who
perform abortions under Title 36. As they acknowledge, this is a question
of law. As explained below, our resolution of this issue clarifies the statutes
can be reconciled such that physicians are permitted to perform abortions
in compliance with Title 36 and not be prosecuted under § 13-3603. We
need not therefore remand to the trial court for any action, including a
modified injunction. See Bills v. Ariz. State Bd. of Educ., 169 Ariz. 366, 370
(App. 1991).
¶11 “The primary aim of statutory construction is to find and give
effect to legislative intent.” UNUM Life Ins. Co. of Am. v. Craig, 200 Ariz.
327, ¶ 11 (2001). We begin with the plain language of the statutes and must
give effect to all provisions. See Stambaugh v. Killian, 242 Ariz. 508, ¶ 7
(2017). When statutes relate to the same subject matter, we read them
together and consider not only “the literal meaning of the wording” but
also “the whole system of related statutes.” State ex rel. Larson v. Farley, 106
Ariz. 119, 122 (1970). We do so “even where the statutes were enacted at
different times, and contain no reference one to the other, and it is
immaterial that they are found in different chapters of the revised statutes.”
Id. And “when two statutes appear to conflict, whenever possible, we
adopt a construction that reconciles one with the other, giving force and
meaning to all statutes involved.” UNUM Life Ins. Co. of Am., 200 Ariz. 327,
¶ 28.
¶12 PPAZ and the PCAO argue that § 13-3603 and the regulatory
scheme in Title 36 can be harmonized by allowing licensed physicians to
provide abortions under Title 36 and applying § 13-3603 to non-physicians.
The PCAO argues in the alternative that “this court should find § 13-3603
to be implicitly repealed in scope so that the entire statutory scheme is given
consistent operation.”
6
PLANNED PARENTHOOD OF ARIZ. v. BRNOVICH
Opinion of the Court
¶13 We agree that the statutes can be reconciled. But for reasons
discussed below, we disagree that there is some conflict between § 13-3603
and Title 36 that must result in the repeal of either, implicit or otherwise.
See UNUM Life Ins. Co. of Am., 200 Ariz. 327, ¶ 28. The statutes, read
together, make clear that physicians are permitted to perform abortions as
regulated by Title 36 regardless of § 13-3603. Thus, physicians who perform
abortions in compliance with Title 36 are not subject to prosecution under
§ 13-3603.
¶14 Arizona’s most recent abortion regulation is the 15-week law,
which directs that a physician “may not intentionally or knowingly
perform, induce or attempt to perform or induce an abortion if the probable
gestational age of the unborn human being has been determined to be
greater than fifteen weeks” absent “a medical emergency.” § 36-2322(B).
Violating that section is a class six felony. § 36-2324(A). Other abortion
regulations found in Title 36 restrict abortion of a viable fetus, § 36-2301.01,
and restrict the provision of abortion without complying with specific
notice and consent requirements, including parental consent in the case of
abortions provided to juveniles, §§ 36-2152, 36-2153, 36-2156, 36-2158.
There are also numerous reporting requirements. §§ 36-2161 to 36-2164, 36-
2322 to 36-2323.
¶15 In contrast, § 13-3603 states in full:
A person who provides, supplies or administers
to a pregnant woman, or procures such woman
to take any medicine, drugs or substance, or
uses or employs any instrument or other means
whatever, with intent thereby to procure the
miscarriage of such woman, unless it is
necessary to save her life, shall be punished by
imprisonment in the state prison for not less
than two years nor more than five years.7
Construed in isolation, § 13-3603 criminalizes most abortions, and its plain
language would encompass abortions performed by licensed physicians.
But we do not construe statutes in isolation. See Farley, 106 Ariz. at 122. In
A procured “miscarriage” historically had the same common
7
language definition as an “abortion”—that is, any artificial termination of a
pregnancy. See Abortion, Miscarriage, Black’s Law Dictionary (11th ed.
2019).
7
PLANNED PARENTHOOD OF ARIZ. v. BRNOVICH
Opinion of the Court
enacting the 15-week law, the legislature made its intent clear: “to restrict
the practice of nontherapeutic or elective abortion to the period up to fifteen
weeks of gestation.” 2022 Ariz. Sess. Laws, ch. 105, § 3(B).
¶16 The 15-week law and other statutes in Title 36 regulate the
provision of abortion by licensed physicians, encompassing not only the
provision of abortion but ancillary matters. Violations of these various
provisions carry not only criminal penalties but other penalties including
licensing sanctions and civil liability. See, e.g., §§ 36-2152(I), (J), 36-2158(C),
(D), 36-2163(G), (H), 36-2303, 36-2324(A), 36-2325(A). In sum, the
legislature has created a complex regulatory scheme to achieve its intent to
restrict—but not to eliminate—elective abortions. Reading § 13-3603 to
impose criminal liability for physicians providing those restricted abortions
would eliminate the elective abortions the legislature merely intended to
regulate under Title 36.
¶17 Brnovich agrees the statutes do not conflict but argues
physicians may nonetheless be prosecuted under § 13-3603 because it
applies to “[a] person,” a term that “undeniably includes licensed
physicians.” See A.R.S. § 13-105(30) (a “[p]erson” is “a human being”). We
reject Brnovich’s reading for three reasons. First, it ignores the
unambiguous legislative intent to regulate but not eliminate elective
abortions, as we have explained. Second, it creates an irreconcilable conflict
between § 13-3603 and Title 36 because it would criminalize conduct
permitted by Title 36. Third, it violates due process by promoting arbitrary
enforcement. We address the second and third reasons in turn.
¶18 Regarding the second reason, adopting Brnovich’s proposed
reading would require us to disregard legislative intent and result in an
irreconcilable conflict between § 13-3603 and Title 36. A conflict exists
when statutes cannot be read “to give each effect and meaning.” Cave Creek
Unified Sch. Dist. v. Ducey, 233 Ariz. 1, ¶ 24 (2013). Brnovich correctly
observes that, when comparing overlapping criminal statutes, we find a
conflict only when the elements required to establish guilt under the
specific statute are identical to the elements required to establish guilt
under the general statute. State v. Gagnon, 236 Ariz. 334, ¶ 7 (App. 2014);
see, e.g., State v. Far W. Water & Sewer, Inc., 224 Ariz. 173, ¶ 21 (App. 2010);
State v. Sommer, 155 Ariz. 145, 147 (App. 1987); State v. Weiner, 126 Ariz. 454,
456 (App. 1980); State v. O’Brien, 123 Ariz. 578, 584 (App. 1979).
¶19 But that analysis is not apt here. We are not evaluating
separate statutes prohibiting the same conduct. Instead, we are faced with
a statutory scheme that, if read as Brnovich suggests, would criminalize
8
PLANNED PARENTHOOD OF ARIZ. v. BRNOVICH
Opinion of the Court
conduct under one statute that our legislature has expressly allowed under
another.8 As Brnovich acknowledged at oral argument before this court,
under his view it would be impossible for a physician to perform an elective
abortion in compliance with Title 36 without potentially facing criminal
prosecution under § 13-3603. And Brnovich’s reading would effectively
render Title 36’s regulation of elective abortion all but meaningless because
there would be no legal elective abortions. For example, the statutory
provisions requiring the reporting of elective abortions, including abortions
for rape and incest, see § 36-2161(A)(12)(a), (d), (e), would serve no useful
purpose. Nor would there be any continuing relevance to provisions like
§ 36-2153(A)(2)(b), which requires that the patient seeking an abortion be
informed that the “father of the unborn child is liable to assist in the support
of the child” except in cases of rape or incest. Instead, we must adopt a
reading that gives vitality to all the relevant statutes. See UNUM Life Ins.
Co. of Am., 200 Ariz. 327, ¶ 28.
¶20 This leads us to the third reason Brnovich’s interpretation is
unsound. If we adopted it, the resulting uncertainty for licensed physicians
who provide abortion services would violate due process, which requires
that “the law must be sufficiently definite to avoid arbitrary enforcement.”
State v. Schmidt, 220 Ariz. 563, ¶ 5 (2009). “The touchstone of due process is
protection of the individual against arbitrary action of government.” Wolff
v. McDonnell, 418 U.S. 539, 558 (1974). Brnovich’s interpretation would not
merely invite arbitrary enforcement, it would practically demand it. When
interpreting statutes, we assume our legislature has enacted them to avoid
8We reject Brnovich’s claim that the 15-week law cannot be read to
preclude the prosecution of physicians under § 13-3603 because the 15-
week law does not “allow” abortions. This argument is grounded in
Brnovich’s refusal to consider the entire statutory scheme as a whole, but
we are required to consider all relevant statutes. See Farley, 106 Ariz. at 122.
The 15-week law prohibits abortions except those it allows—that is, it
permits a licensed physician to perform abortions in emergency situations
and elective abortions if the physician has determined the fetus’s
gestational age is fifteen weeks or less and otherwise has complied with
Title 36. § 36-2322(A), (B). We also reject Brnovich’s related contention that
our reading somehow runs afoul of the legislature’s statement that the 15-
week law does not create a right to abortion or “make lawful an abortion
that is currently unlawful.” 2022 Ariz. Sess. Laws, ch. 105, § 2(1). At the
time the legislature enacted the 15-week law, § 13-3603 was unenforceable.
Elective abortions were, at that time, permitted in compliance with Title 36,
as they are now.
9
PLANNED PARENTHOOD OF ARIZ. v. BRNOVICH
Opinion of the Court
such unconstitutional results. Hayes v. Cont’l Ins. Co., 178 Ariz. 264, 272
(1994) (court construes statutes to avoid rendering them unconstitutional).
¶21 According to Brnovich, the conflict his interpretation creates
is resolved because prosecutors have discretion whether and how to charge
those who violate criminal statutes. But under this interpretation,
physicians performing elective abortions would not know if their conduct
would be criminally prosecuted under § 13-3603 or if they could avoid
criminal liability by complying with Title 36. Even if a specific county
attorney and attorney general had publicly promised they would not
charge physicians under § 13-3603, a physician would still be at risk
considering the statute of limitations for felonies in Arizona exceeds the
term of elected county attorneys and the attorney general. See Ariz. Const.
art. V, § 1, art. XII, § 3; A.R.S. § 13-107(B).
¶22 Brnovich further suggests that we are essentially imposing a
partial implied repeal of § 13-3603 by concluding the legislature intended
to permit physicians to perform elective abortions under the 15-week law.
Under the doctrine of implied repeal, where it appears by reason of
repugnancy, or inconsistency, that two conflicting statutes cannot operate
contemporaneously, the “more recent, specific statute governs over [an]
older, more general statute.” UNUM Life Ins. Co. of Am., 200 Ariz. 327, ¶ 29
(alteration in UNUM) (quoting Lemons v. Superior Court, 141 Ariz. 502, 505
(1984)). Not only is the doctrine of implied repeal disfavored, id. ¶ 28, our
legislature has specifically instructed us to construe the 15-week law in a
manner that does not “[r]epeal, by implication or otherwise, section
13-3603, Arizona Revised Statutes, or any other applicable state law
regulating or restricting abortion,” 2022 Ariz. Sess. Laws, ch. 105, § 2(2).
¶23 But as we have already explained, we are not imposing an
implied repeal here. The doctrine of implied repeal requires as a predicate
that any apparent conflict between the statutes cannot be reconciled to give
“force and meaning to all statutes involved.” UNUM Life Ins. Co. of Am.,
200 Ariz. 327, ¶ 28. Here, our numerous statutes regulating abortion can be
readily reconciled in conformity with our legislature’s express intent that
we do so. The 15-week law permits physicians to perform abortions and
clearly delineates the penalties for doing so in violation of that statutory
scheme. This is consistent with the exception originally created by the
legislature in § 13-3603 for abortions performed by licensed physicians to
save the life of the mother. Any other person who intentionally performs
an abortion is subject to prosecution under § 13-3603. We thus need not
imply the legislature’s intent—it stated it directly.
10
PLANNED PARENTHOOD OF ARIZ. v. BRNOVICH
Opinion of the Court
¶24 Finally, our legislature conspicuously avoided statutory
language stating that § 13-3603 should govern irrespective of other law
should Roe be overturned. For example, in enacting its own 15-week law,
the Mississippi legislature included clauses stating that: “An abortion that
complies with this section, but violates any other state law, is unlawful. An
abortion that complies with another state law, but violates this section is
unlawful.” Miss. Code Ann. § 41-41-191(8) (2018). Arizona’s 15-week law
contains no such clause despite otherwise mirroring Mississippi’s law,
almost word for word, in all other respects. And our legislature has enacted
comparable “trigger” clauses in other statutes. See, e.g., 1999 Ariz. Sess.
Laws, ch. 311, §§ 12, 13 (calling for varying definition of “abortion clinic”
depending on constitutionality of definition). The legislature’s decision to
forgo a similar provision here further reflects its intent that licensed
physicians not face criminal prosecution under § 13-3603 for providing
certain elective abortions.
Attorney Fees and Costs
¶25 PPAZ requests an award of attorney fees and costs under
A.R.S. §§ 12-341, 12-342, 12-348, “and the private attorney general doctrine”
but provides no further explanation supporting its entitlement to attorney
fees. Accordingly, in our discretion, we deny PPAZ’s request for attorney
fees, but, as the prevailing party, PPAZ is entitled to its costs upon
compliance with Rule 21, Ariz. R. Civ. App. P. See § 12-341.
Disposition
¶26 Licensed physicians who perform abortions in compliance
with Title 36 are not subject to prosecution under § 13-3603. We affirm in
part and reverse in part the trial court’s order as modified by this opinion.
E C K E R S T R O M, Presiding Judge, specially concurring:
¶27 In lifting the injunction and giving effect to § 13-3603, a law
originally enacted over a century ago, we must necessarily address how
that statute integrates with Arizona’s subsequently enacted statutes
regulating abortion. In doing so, we strictly follow our legislature’s
direction on how its more contemporary laws should interact with § 13-
3603. To the extent detailed legislative instruction is not provided, we
apply settled canons of construction for integrating new statutes with old.
¶28 Here, the legislature has expressly directed that we read our
subsequent statutes regulating abortion in harmony with § 13-3603. Its
most recent bill, the “15-week law,” specifically instructs that neither
11
PLANNED PARENTHOOD OF ARIZ. v. BRNOVICH
Opinion of the Court
Arizona’s original law, nor its host of more modern regulations of abortion,
is “[r]epeal[ed], by implication or otherwise.” 2022 Ariz. Sess. Laws, ch.
105, § 2. This conforms with our threshold canon, well understood by our
legislature, for how we presumptively integrate newer statutes into an
existing statutory framework: we read new statutes in harmony with old
ones. Fleming v. State Dep’t of Pub. Safety, 237 Ariz. 414, ¶ 12 (2015) (courts
must construe separate statutory provisions relating to same subject matter
“together as though they constitute one law”); UNUM Life Ins. Co. of Am.,
200 Ariz. 327, ¶ 28; see also Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts 252 (2012) (“[L]aws dealing with the same
subject . . . should if possible be interpreted harmoniously.”).
¶29 At the same time, we recognize that our legislature fully
intends its new statutes to alter the pre-existing legal landscape; otherwise,
it would not have bothered to pass them. Therefore, when conducting the
harmonization process, we understand new laws, to the extent possible, as
amending, amplifying, or calibrating pre-existing statutes without
supplanting them. See, e.g., State v. Cassius, 110 Ariz. 485, 487 (1974) (when
later statute expresses more specific intent than more general existing
statutes, new statute is “taken as an exception to the general intent, and
both will stand”); O’Brien, 123 Ariz. at 583 (legislatures presumed to enact
statutes compatible with existing legislation: “where the [later] specific
statute is narrower, the [older] general one is not repealed”).
¶30 In this case, harmonizing all of our state’s abortion statutes is
not a difficult task. As the majority’s analysis demonstrates, our
contemporary laws relating to abortion can be read, side by side, with our
original one, without depriving any of continuing legislative logic or
vitality.
¶31 Arizona’s original statute outlawing most abortions,
§ 13-3603, itself contains an exception permitting abortions when necessary
to save the life of the mother. Arizona’s more specific subsequent laws,
including the most recent 15-week law, may be read in harmony with that
provision, by understanding them as merely adding further exceptions to
the general prohibition on abortion. See Cassius, 110 Ariz. at 487(subsequent legislation may carve out exceptions to earlier, more general
statute without supplanting it). Under this construction, our contemporary
statutes permit physicians to perform elective abortions up to fifteen weeks
but only in conformity with a host of exacting regulations. Our original law
continues to outlaw abortions under all circumstances not permitted by that
subsequent legislation. This construction results in a coherent and easily
applied statutory scheme. It is the only construction that comports with the
12
PLANNED PARENTHOOD OF ARIZ. v. BRNOVICH
Opinion of the Court
legislature’s direction that each of the statutes regulating abortion continue
to have force and effect.
¶32 Brnovich objects that this construction markedly changes the
ultimate application of § 13-3603 from its original effect in 1912. But we
must presume legislatures know, and fully intend, that all new laws will,
as a practical matter, change the pre-existing statutory landscape in some
respect—even when the new legislation, as here, expressly directs us that
pre-existing laws have not been repealed. As the above-cited authority
implicitly instructs, we assume non-repeal language in current legislation
merely directs us to consider that legislation as amending or calibrating,
rather than replacing, the non-repealed statute. It would be nonsensical to
do what Brnovich urges: to nullify, as a practical matter, the very legislation
that contains the non-repeal clause in favor of the older, non-repealed
statute. See id. (“The presumption is that the legislature did not intend to
do a futile thing by including in a statute a provision which is nonoperative
or invalid.”).
¶33 The majority explains why Brnovich’s own suggestion for
how we should harmonize the old and new statutes—by empowering
prosecutorial discretion—would necessarily create unconstitutional
conflict between the statutes in application. But, perhaps more importantly,
Brnovich’s remedy goes unmentioned in any statutory text provided by the
legislature. Had our legislature intended the lawfulness of elective abortion
to vary depending on the county-by-county discretion of local law
enforcement officials, county attorneys, and the state-wide discretion of the
attorney general, it would have specified such a complicated and
extraordinary approach in direct, unambiguous language. Instead, in the
15-week law, our legislature sets forth a detailed regulatory structure
outlawing elective abortions after fifteen weeks of gestational age. It
articulates requirements for ascertaining and reporting the gestational age
of a fetus and medical circumstances under which abortions may be
performed after fifteen weeks. § 36-2322. It sets forth specific penalties for
a person violating its provisions. §§ 36-2324(A), 36-2325. Far from
providing law enforcement agencies broad discretion on prosecuting
elective abortions, our most recent statute gives detailed instruction to those
officials on when physicians may, and may not, be criminally prosecuted
or civilly sanctioned for performing an abortion. §§ 36-2322, 36-2324(A),
36-2326, 36-2325.
¶34 In sum, I join fully with the majority’s reasoning because it
best complies with our legislature’s express instructions that we give all
existing abortion regulations vitality: that we impliedly repeal no
13
PLANNED PARENTHOOD OF ARIZ. v. BRNOVICH
Opinion of the Court
provision, old or new. It also executes our legislature’s expectation that, to
the extent its express instructions do not settle all disputes in construction,
we will conduct the obligatory harmonization process in conformity with
our settled canons for doing so. By this process, we show our strictest
fidelity to legislative intent.
14