Can a “dead” statute be brought back to life? The Arizona Supreme Court seems to think so. It recently ruled that Arizona’s 1864 abortion statute – consigned to the morgue in 1973 when the U.S. Supreme Court invalidated abortion laws by declaring abortion a constitutional right in Roe v. Wade – is now valid and enforceable because Roe v. Wade was overruled.
Many commentators, a few of whom may have read the Planned Parenthood decision, say the Arizona Supreme Court’s judicial activism is exceeded only by their political incorrectness. Taking a 160-year-old abortion statute thrown by the wayside back in 1973 and declaring that this statute is now back on the books, prohibiting all abortions except those necessary to save the life of the mother – why, that’s like breathing life into Ezekiel’s valley of dry bones (37:1-14)!
But what did the Court really do?
Let’s look at the facts:
The Arizona statute was passed by the Legislature in 1864 and was in keeping with abortion laws adopted in states across the country, which recognized developments in medical science proving the preborn child is a living person.
The statute was effective until the Supreme Court fabricated a supposed “right” to abortion in Roe v. Wade (1973), enjoining the enforcement of the Arizona abortion law. However, the Legislature never changed the law nor removed it from the books.
The U.S. Supreme Court overruled Roe v. Wade in Dobbs v. Jackson (2022), holding that, because there is no right to abortion in the U.S. Constitution, states are free to regulate abortion as they deem appropriate.
Because the Roe decision is no longer in effect, there is now no federal reason Arizona cannot enforce its abortion law. The Arizona abortion law is therefore in effect once again.
Two questions are worthy of consideration:
If a court decision invalidating a state law is overruled, is that state law “resurrected,” or does the Legislature have to pass it again? Courts and legal scholars are unclear; suffice it to say, the Arizona Supreme Court’s position is within the mainstream of jurisprudence.
Did the Arizona Legislature effectively repeal the 1864 statute by passing a new statute prohibiting abortion later than 15 weeks after conception? The Court considered that question and noted that nothing in the new statute repealed the old statute; in fact, the new statute specifically stated that the act does not “create or recognize a right to abortion” or “repeal, by implication or otherwise, section 13-3603, Arizona Revised Statutes, or any other applicable state law regulating or restricting abortion.”
Just as the Alabama Supreme Court rightly concluded that the Alabama Constitution’s protection of preborn children includes frozen embryos, so the Arizona Supreme Court rightly concluded that the 1864 law is still in effect. Deciding otherwise would have been judicial activism in the extreme. It is the responsibility of legislators, not judges, to determine whether laws are too old and need to be replaced. The 10 Commandments with their prohibitions against murder and theft are 3,400 years old, but they are hardly outdated.
How should we respond?
First, we should thank God that courageous Christian jurists like Justice Alito at the U.S. Supreme Court, Chief Justice Parker at the Alabama Supreme Court, and Justice Lopez at the Arizona Supreme Court had the insight and courage to follow the Constitution and to protect the preborn right to life.
Second, we should consider the practical consequences of their decisions. Dobbs led to a backlash, partly among those misled to think the Supreme Court outlawed abortion. (It didn’t; it left the issue to the states where it belongs.) Pro-abortion measures were passed and pro-life measures were defeated in legislatures and in popular referenda, even in conservative states. The Alabama LePage decision and the Arizona Planned Parenthood decision threaten even greater backlashes. If we overrule Roe v. Wade (the worst constitutional atrocity since Dred Scot) but the result is the defeat of pro-life legislators and other candidates across the board, along with the enactment of abortion-demand laws in every state, have we really scored a victory for the pro-life cause and the lives of the preborn?
I’m still thinking about this. But I’m starting to conclude that, when enacting righteous laws and policies, legislatures and courts cannot get too far in front of public opinion. Otherwise, the people will dig in their heels and rebel.
E. C. Wines, a great Bible scholar whose “Commentaries on the Laws of the Ancient Hebrews” (1853) is a classic, observed that a literal application of the Mosaic Law “overlooks a material distinction – the distinction between laws intrinsically the wisest, and laws which are the wisest only when viewed as relating to times and circumstances.” He continued:
Civil laws, whatever be their source, to be adapted to the wants of any given community, must arise out of circumstances, and be relative to certain specific ends; which ends, under other circumstances, it might be the height of folly to pursue. When Solon was asked whether he had given the best laws to the Athenians, he replied: ‘I have given them the best that they were able to bear.’ Sage response! Is it not of much the same nature with that declaration of divine wisdom to the Jews, which has so perplexed biblical inquirers,
‘I gave them also statutes that were not good,’ [Ezekiel 20:25] that is, laws not absolutely the best, though they were relatively so. Montesquieu, with that penetration which belongs to all his philosophical reflections, has observed, that the passage cited above, is the sponge that wipes out all the difficulties, which are to be found in the law of Moses. …
A wise legislator, whether divine or human, in framing a new code of laws for a people, will give attention to considerations of climate, of religion, of existing institutions, of settled maxims of government, of precedent, of morals, of customs, and of manners. Out of all these there arises a general tone, or habit, of feeling, thinking, and acting, which constitutes what may be called the spirit of the nation. Now, a lawgiver shows himself deficient in legislative wisdom, who makes laws which shock the general sentiment of the people, laws which are at war with prevalent notions and rooted customs, which strip men of long-established and favorite rights. …
The principle that laws must be relative to circumstances, that they must grow out of the state of society, and be adopted to its wants, is founded in reason, and confirmed by experience.
Does this mean we give up our legal and political struggle for the civil rights of the preborn? Absolutely not!
But while we litigate and legislate, we must also educate. We must impress people with the personhood of the preborn, an easy task because biblical testimony and scientific evidence are both clear. The New Testament tells us that John the Baptist “leaped for joy” in his mother’s womb when Mary, who was carrying Jesus in her womb, entered her presence. Modern medicine tells us that from the moment of fertilization the preborn child has a DNA all its own, different from its father, mother, and every other person.
The battle for preborn life did not culminate with the Dobbs v. Jackson decision. It now enters an intensified stage – the battle for the hearts and minds and souls of men. But it is a winnable war, so let us press on to victory!
Colonel Eidsmoe is Senior Counsel for the Foundation for Moral Law (morallaw.org) and Professor of Constitutional Law for the Oak Brook College of Law & Government Policy (obcl.edu). He may be reached for speaking engagements at eidsmoeja@juno.com.
The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to Commentary@1819News.com.
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