The reasoning the Arizona Supreme Court gave on Tuesday is two sentences long in substance, and understanding those two sentences is the whole of this.
Writing for a four to two majority, Justice John Lopez said that the state’s 2022 law permitting abortion up to fifteen weeks had been premised on the existence of a federal constitutional right. That right having been removed by the Supreme Court of the United States in 2022, the later statute could not displace the earlier one, and the earlier one is from 1864.
This is an explanation of how that works, because the mechanism is unfamiliar and it is not confined to this subject or this state.
A law does not die of disuse
The first thing to understand is that a statute stops operating for one of very few reasons, and the passage of time is not one of them.
It can be repealed by the legislature. It can be struck down as unconstitutional by a court. It can be superseded by a later statute that covers the same ground inconsistently. Absent one of those, it remains on the books and remains law, whatever anybody assumed.
That list is short on purpose. A legal system in which laws lapsed through neglect would be one in which nobody could say what the law was on any given day, so the rule is that a statute persists until something specific happens to it.
Enforcement is a separate question entirely. A law that nobody has charged anybody under for a century is still a law; it is an unenforced law. And the officials who decline to enforce it are exercising discretion, which the next set of officials need not exercise the same way.
So the 1864 statute, written when Arizona was a territory, forty-eight years before statehood and fifty-six years before women could vote nationally, was not revived on Tuesday. It had never stopped being a statute. It had been unenforceable, which is a different condition and a reversible one.
What made it unenforceable, and what removed that
From 1973, a federal constitutional right sat above every state abortion statute in the country. A state law conflicting with that right could not be enforced, not because the state had repealed it but because a superior rule preempted it.
That is the mechanism people mistake for repeal. A preempted statute behaves exactly like a repealed one for as long as the preemption lasts. It generates no prosecutions, appears in no practice, and eventually stops being discussed. But it remains in the code, and codes are permanent in a way that practice is not.
When the federal right was removed in 2022, the preemption went with it. Every state statute that had been dormant for that reason became, in principle, operative again on the same day, subject only to whatever the state’s own law said.
Why the 2022 law did not solve it
This is the part that turns on drafting, and it is where the case was actually decided.
Arizona’s legislature passed a fifteen-week limit in 2022, in the period before the federal decision came down. A legislature writing a fifteen-week law while a constitutional right is in force is writing within that right, and the question is what it intended to happen to the older statute.
If the 2022 law had said plainly that it replaced all prior abortion statutes, the case would have gone the other way and there would have been nothing to argue about. It did not. The court read it as a regulation operating inside the federal framework rather than as a replacement of the territorial ban, and on that reading the two laws are not inconsistent in the way that would displace the older one. The fifteen-week limit governed while the right existed. With the right gone, the older statute is the operative one.
Whether that reading is correct is a genuine question and the two dissenters thought it was not. What is not in dispute is that the ambiguity was in the drafting, and that a single sentence of repeal language would have removed it.
What the old statute actually says
Precision here, because the law is short and its terms matter.
It prohibits providing, supplying or administering an abortion, with an exception where it is necessary to save the life of the woman. There is no exception for rape or for incest. The penalty falls on the provider and on anyone assisting, and it is a term of two to five years in prison.
The woman obtaining an abortion is not the person the statute punishes. That is characteristic of nineteenth century statutes of this kind and it is frequently misdescribed.
It is worth adding what the court did not decide, because the coverage has been loose about it. The ruling is about which of two Arizona statutes governs, not about whether the older one is compatible with Arizona’s own constitution. That second question is live and was expressly left open.
Why this is not only an Arizona problem
Dormant statutes of this vintage exist in the codes of a good many states, on a good many subjects, and nobody has a complete inventory.
That is not negligence exactly. A legislature that repealed every unenforceable law on its books would spend a session doing it, and the political cost of voting on each one individually is considerable, which is precisely why nobody does it. The rational choice for any individual legislature is to leave them and rely on the preemption holding.
Tuesday is a demonstration of what that choice costs when a preemption that everybody treated as permanent turns out not to be. The exposure is not limited to this subject; it is a general property of legal systems that accumulate statutes and never prune them.
What happens now, which nobody can say
The court stayed its own decision while a lower court considers further arguments about the statute’s constitutionality under the state constitution, so nothing takes effect immediately.
Beyond that the paths multiply and none of them is predictable. The legislature could repeal the 1864 law, which requires a majority willing to vote for it. A ballot initiative could put the question to voters directly. The further litigation could succeed or fail on grounds not yet argued.
Only one thing is settled. A statute written by a territorial legislature in 1864 has been in Arizona’s code continuously for a hundred and sixty years, the state’s highest court has now held it to be enforceable law, and the single reason it went unenforced for fifty of those years was a federal decision that has since been undone. Everything that happens next requires somebody to act. The statute requires nobody to do anything at all. It has been sitting there the entire time.
