IN THE SUPREME COURT OF THE STATE OF ARIZONA PLANNED PARENTHOOD ARIZONA, INC., SUCCESSOR-IN-INTEREST TO PLANNED PARENTHOOD CENTER OF TUCSON, INC.; LAURA CONOVER, PIMA COUNTY ATTORNEY, Appellants,

v. KRISTIN K. MAYES, 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; DENNIS MCGRANE, YAVAPAI COUNTY ATTORNEY, Intervenors.

No. CV-23-0005-PR Filed April 9, 2024

Appeal from the Superior Court in Pima County The Honorable Kellie L. Johnson, Judge No. C127867 AFFIRMED

Opinion of the Court of Appeals, Division Two 254 Ariz. 401 (App. 2022) VACATED

COUNSEL:

D. Andrew Gaona (argued), Austin C. Yost, Coppersmith Brockelman PLC, Phoenix; and Diana O. Salgado, Planned Parenthood Federation of America, Washington, DC, Attorneys for Planned Parenthood Arizona Inc.

Laura Conover, Pima County Attorney, Samuel E. Brown (argued), Jonathan Pinkney, Pima County Attorney’s Office, Tucson; and Aadika

PLANNED PARENTHOOD V. KRISTIN MAYES/HAZELRIGG Opinion of the Court

Singh, Joshua Rosenthal, Cristian Torres, Public Rights Project, Oakland, CA, Attorneys for Laura Conover

Kristin K. Mayes, Arizona Attorney General, Joshua D. Bendor (argued), Solicitor General, Alexander W. Samuels, Assistant Solicitor General, Luci D. Davis, Assistant Attorney General, Phoenix, Attorneys for Kristin K. Mayes

Kevin H. Theriot, Jacob P. Warner (argued), Alliance Defending Freedom, Scottsdale; John J. Bursch, Alliance Defending Freedom, Washington, DC; and Denise M. Harle, Alliance Defending Freedom, Lawrenceville, GA, Attorneys for Eric Hazelrigg and Dennis McGrane

Joshua W. Carden, Carden Livesay, Ltd, Mesa, Attorney for Amicus Curiae American College of Pediatricians

Kevin L. Beckwith, Law Offices of Kevin L. Beckwith P.C., Phoenix; Olivia F. Summers, American Center for Law and Justice, Washington, DC, Attorneys for Amici Curiae Charlotte Lozier Institute et al.

Roberta S. Livesay, Carden Livesay, Ltd, Mesa, Attorney for Amicus Curiae American Association of Pro-Life Obstetricians and Gynecologists

Parker C. Fox, Phoenix and Tim Griffin, Arkansas Attorney General, Nicholas J. Bronni, Arkansas Solicitor General, Dylan L. Jacobs, Deputy Solicitor General, Hannah L. Templin, Assistant Solicitor General, Little Rock, AR, Attorneys for Amicus Curiae State of Arkansas and 16 Other States

Kory Langhofer, Thomas Basile, Statecraft PLLC, Phoenix, Attorneys for Amici Curiae Speaker of the Arizona House of Representatives Ben Toma and President of the Arizona Senate Warren Petersen

Andrew S. Lishko, May, Potenza, Baran & Gillespie, P.C., Phoenix, Attorneys for Amicus Curiae Jill Norgaard

Steven H. Aden, Americans United for Life, Washington, DC; and Samuel D. Green, Reason for Life, Palmdale, CA, Attorneys for Amicus Curiae Center for Arizona Policy PLANNED PARENTHOOD V. KRISTIN MAYES/HAZELRIGG Opinion of the Court

Timothy D. Ducar, Law Offices of Timothy D. Ducar, PLC, Scottsdale; and Mathew D. Staver, Liberty Counsel, Orlando, FL, Attorneys for Amici Curiae Arizona Life Coalition, Frederick Douglass Foundation, and the National Hispanic Christian Leadership Conference Doug Newborn, Doug Newborn Law Firm, PLLC, Tucson, Attorney for Amicus Curiae Christian Medical and Dental Associations Abigail J. Mills, Schmitt Schneck Even & Williams, P.C., Phoenix, Attorneys for Amicus Curiae The Prolife Center at the University of St. Thomas (MN) David J. Euchner, Lauren K. Beall, Arizona Attorneys for Criminal Justice, Tucson, Attorneys for Amicus Curiae Arizona Attorneys for Criminal Justice Susan C. Salmon, Joy E. Herr-Cardillo, The University of Arizona, James E. Rogers College of Law, Tucson, Attorneys for Amicus Curiae the Family & Juvenile Law Association, University of Arizona, James E. Rogers College of Law Alexis E. Danneman, Jean-Jacques Cabou, Perkins Coie LLP, Phoenix, Attorneys for Amicus Curiae National Council of Jewish Women of Arizona Adriane Hofmeyr, Hofmeyr Law PLLC, Tucson; and Orlando Economos, Benjamin Seel, Democracy Forward Foundation, Washington, DC, Attorneys for Amici Curiae Law Professors Sambo (Bo) Dul, Neta Borshansky, Noah T. Gabrielsen, Office of Governor Katie Hobbs, Phoenix, Attorneys for Amicus Curiae Governor Katie Hobbs Bruce Samuels, Lauren A. Crawford, Hannah Dolski, Anita Ramalho Rocha, Papetti Samuels Weiss McKirgan LLP, Scottsdale, Attorneys for Amici Curiae League of Women Voters of Arizona and Arizona Business Owners Timothy J. Berg, Emily Ward, Fennemore Craig, P.C., Phoenix, Attorneys for Amicus Curiae Joel John PLANNED PARENTHOOD V. KRISTIN MAYES/HAZELRIGG Opinion of the Court

Christopher D. Thomas, Karen Scherner Aldama, Kristine J. Beaudoin, Perkins Coie LLP, Phoenix; and Nicole Saharsky, Mayer Brown LLP, Washington, DC, Attorneys for Amici Curiae American College of Obstetricians and Gynecologists, American Medical Association, Arizona Medical Association and Society for Maternal-Fetal Medicine J. Stanley Martineau, Martineau Law, PLLC, Mesa, Attorneys for Amici Curiae Mario Villegas and Estate of Baby Villegas JUSTICE LOPEZ authored the Opinion of the Court, in which JUSTICES BOLICK, BEENE, and KING joined. VICE CHIEF JUSTICE TIMMER authored a dissenting opinion in which CHIEF JUSTICE BRUTINEL joined. 1 JUSTICE LOPEZ, Opinion of the Court: ¶1 We consider whether the Arizona Legislature repealed or otherwise restricted A.R.S. § 13-3603 by enacting the abortion statutes in Title 36, 2 namely A.R.S. § 36-2322, the statute proscribing physicians from performing elective abortions after fifteen weeks’ gestation. This case involves statutory interpretation—it does not rest on the justices’ morals or public policy views regarding abortion; nor does it rest on § 13-3603’s constitutionality, which is not before us. ¶2 We conclude that § 36-2322 does not create a right to, or otherwise provide independent statutory authority for, an abortion that repeals or restricts § 13-3603, but rather is predicated entirely on the 1 Justice William G. Montgomery has recused himself from this case. 2 References to “Title 36” pertain strictly to the abortion statutes codified in title 36, chapters 20 and 23, §§ 36-2151 through -2164, and §§ 36-2301 through -2326.

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existence of a federal constitutional right to an abortion since disclaimed by Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215, 292 (2022). Absent the federal constitutional abortion right, and because § 36-2322 does not independently authorize abortion, there is no provision in federal or state law prohibiting § 13-3603’s operation. Accordingly, § 13-3603 is now enforceable.

¶3 When this litigation was initiated in 1971, the plaintiffs asserted a number of state and federal constitutional challenges to § 13-3603, in addition to those presented in Roe v. Wade, 410 U.S. 113 (1973), which was overruled by Dobbs. We remand the case to the trial court for consideration of those additional constitutional challenges if the plaintiffs wish to pursue them, and we temporarily extend the existing stay against enforcement of § 13-3603 so that the trial court may determine how to proceed.

BACKGROUND

¶4 In 1864, the First Legislative Assembly published a code of laws governing the territory of Arizona. See Howell Code (1864). The Howell Code established Arizona’s first criminal code, which included constraints on abortion. In 1901, the Twenty-First Legislative Assembly enacted a penal code reiterating the abortion law, dividing criminality between people who facilitate abortions and women who solicit assistance to procure an abortion. See Revised Statutes of Arizona, Penal Code §§ 234, 244 (1901). This language was adopted in whole in 1913, after Arizona statehood. See Revised Statutes of Arizona, Penal Code § 273 (1913). In 1928, the Arizona Legislature codified abortion criminality in A.R.S. §§ 13-211 to -213.

¶5 In 1971, Planned Parenthood Center of Tucson, Inc. sued the Attorney General challenging the constitutionality of Arizona’s abortion statutes under both the state and federal constitutions. See Planned Parenthood Ctr. of Tucson, Inc. v. Marks, 17 Ariz. App. 308, 311–13 (1972) (reversing the trial court’s order of dismissal and remanding to proceed to a resolution of the case on its merits). On remand from Marks, the trial court ruled Arizona’s abortion statutes unconstitutional. See Nelson v. Planned Parenthood Ctr. of Tucson, Inc., 19 Ariz. App. 142, 143 (1973). On appeal, the court of appeals reversed the trial court’s ruling, upholding the PLANNED PARENTHOOD V. KRISTIN MAYES/HAZELRIGG Opinion of the Court

constitutionality of the abortion statutes. Id. at 150. In 1973, after Nelson upheld § 13-211’s constitutionality, the United States Supreme Court recognized a federal constitutional right to an abortion in Roe. This new right established by Roe was inconsistent with § 13-211, so the Arizona Court of Appeals revisited the issue in Marks, this time holding the statute unconstitutional because of Roe and enjoining enforcement of § 13-211. Nelson, 19 Ariz. App. at 152.

¶6 Despite Nelson, the Arizona Legislature did not repeal § 13-211. To the contrary, four years after Roe and Nelson, the legislature recodified § 13-211 as § 13-3603, maintaining the operative language of the statute. 3 1977 Ariz. Sess. Laws ch. 142, § 99 (1st Reg. Sess.).

¶7 The abortion law’s recodification was not the only legislative change made to the abortion statutory scheme. Between 1973 and 2022, and conforming to the federal abortion right established in Roe, the Arizona Legislature codified dozens of abortion statutes in Title 36. See, e.g., 1973 Ariz. Sess. Laws ch. 155, § 1 (1st Reg. Sess.); 2022 Ariz. Sess. Laws ch. 105, § 1 (2d Reg. Sess.). To the extent permitted by Roe and its progeny, all of these statutes restricted abortions, including adding many procedural requirements for physicians performing abortions.

¶8 In June 2022, the Supreme Court overturned Roe, thereby eliminating the federal constitutional right to abortion and returning “the authority to regulate abortion . . . to the people and their elected representatives.” Dobbs, 597 U.S. at 292.

3 Section 13-3603 provides: 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.

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¶9 After Dobbs, then-Attorney General Mark Brnovich moved for relief under Arizona Rule of Civil Procedure 60(b)(5)–(6), seeking to set aside the permanent injunction against § 13-3603 imposed in 1973. Planned Parenthood Arizona, Inc. (“Planned Parenthood”) opposed the motion, conceding that the original foundation for the injunction—Roe—was no longer applicable, but asserting that the injunction must be modified to harmonize § 13-3603 with Title 36, including § 36-2322. Planned Parenthood Ariz., Inc. v. Brnovich, 254 Ariz. 401, 403 ¶ 5 (App. 2022).

¶10 The trial court granted the Rule 60 motion, noting that simply “modifying the injunction to harmonize laws not in existence when the Complaint was filed, on grounds for relief not set forth in the Complaint, is procedurally improper.” The court further reasoned that “the requested modified injunction which would carve out an exception for physicians, is not consistent with the plain language of A.R.S. § 13-3603 which contains no such exception.” Because the legal grounds for the 1973 injunction were overturned by Dobbs, the trial court “vacate[d] the judgment in its entirety” to allow full enforcement of § 13-3603. Planned Parenthood appealed and filed an emergency motion to stay the trial court’s order pending appeal. The trial court denied the request; however, the court of appeals subsequently granted the stay.

¶11 The court of appeals reversed the trial court’s order, concluding, in part, that “[l]icensed physicians who perform abortions in compliance with Title 36 are not subject to prosecution under § 13-3603.” Id. at 408 ¶ 26. The court of appeals held that the trial court improperly limited review regarding the 1973 injunction, as a proper review would necessitate a consideration of the full statutory scheme, including Title 36. Id. at 404–05 ¶¶ 7, 9–10. Accordingly, the court of appeals considered whether § 13-3603 conflicted with Title 36, ultimately finding no “conflict between § 13-3603 and Title 36 that must result in the repeal of either.” Id. at 405 ¶ 13. Instead, the court of appeals held that the statutes should be harmonized “to conclude the abortion regulations in Title 36 govern,” so “physicians who perform abortions in compliance with Title 36 are not subject to prosecution under § 13-3603.” Id. ¶¶ 10, 13.

¶12 Dr. Eric Hazelrigg (“Hazelrigg”) sought timely review of the court of appeals’ opinion. We granted review to consider the statutory construction of Arizona’s abortion laws post-Dobbs, an issue of statewide PLANNED PARENTHOOD V. KRISTIN MAYES/HAZELRIGG Opinion of the Court importance. We have jurisdiction under article 6, section 5(3) of the Arizona Constitution.

DISCUSSION

I.

¶13 We review a question of statutory construction de novo. BSI Holdings, LLC v. Ariz. Dep’t of Transp., 244 Ariz. 17, 19 ¶ 9 (2018).

¶14 We pause to emphasize the unusual nature of the statutory interpretation in which we must engage. Interpreting and harmonizing multiple statutes concerning the same subject matter is a familiar task. See, e.g., State v. Santillanes, 541 P.3d 1150, 1155 ¶ 16 (Ariz. 2024); Mussi v. Hobbs, 255 Ariz. 395, 401 ¶ 30 (2023); State v. Patel, 251 Ariz. 131, 137 ¶ 24 (2021). Here, we consider a statute that was never repealed—in fact, it was recodified even after it was enjoined—followed by the enactment of a series of statutes regulating the same subject matter in the wake of Roe, the Supreme Court decision striking down the original statute. Hence, the question presented is different from those arising in the ordinary statutory interpretation context: whether the later statutes “repeal or otherwise limit” the earlier statute. Neither party could identify precedent squarely resolving such an unusual circumstance. Thus, we examine the later-adopted Title 36 statutes to determine whether they repealed or limited § 13-3603, or instead merely restricted abortions to the extent possible so long as Roe prevented enforcement of § 13-3603.

A.

¶15 We begin by setting out the rules of statutory construction that guide our analysis. We interpret statutes “in view of the entire text, considering the context and related statutes on the same subject.” Nicaise v. Sundaram, 245 Ariz. 566, 568 ¶ 11 (2019). Clear and unequivocal language determines a statute’s meaning, reading each word, phrase, clause, and sentence in such a way to ensure no part of the statute is void or trivial. See Janson ex rel. Janson v. Christensen, 167 Ariz. 470, 471 (1991). Under this plain meaning analysis, “[w]e look first to the language of the provision, for if the [statutory] language is clear, judicial construction is neither required nor proper.” Perini Land & Dev. Co. v. Pima County, 170 Ariz. 380, 383 (1992); see PLANNED PARENTHOOD V. KRISTIN MAYES/HAZELRIGG Opinion of the Court

also SolarCity Corp. v. Ariz. Dep’t of Revenue, 243 Ariz. 477, 480 ¶ 8 (2018). This analytical approach is premised on foundational trust in legislative competency, and this Court “presume[s] that the legislature knows the existing laws when it enacts or modifies a statute.” State v. Garza Rodriguez, 164 Ariz. 107, 111 (1990).

¶16 Statutory terms must be given effect “in accordance with their commonly accepted meanings, ‘unless the legislature has offered its own definition of the words or it appears from the context that a special meaning was intended.’” State v. Reynolds, 170 Ariz. 233, 234 (1992) (internal citation omitted) (quoting Mid Kan. Fed. Sav. & Loan Ass’n of Wichita v. Dynamic Dev. Corp., 167 Ariz. 122, 128 (1991)). In determining “commonly accepted meanings,” “we may refer to established and widely used dictionaries.” Id.; Special Fund Div. v. Indus. Comm’n, 232 Ariz. 110, 113 ¶ 12 (App. 2013). We also may consider a statement of legislative intent, including a construction provision, in discerning the meaning of a statute. See S. Ariz. Home Builders Ass’n v. Town of Marana, 254 Ariz. 281, 286 ¶ 31 (2023) (noting that we determine the meaning of a statute “according to the plain meaning of the words in their broader statutory context, unless the legislature directs us to do otherwise”); Aros v. Beneficial Ariz., Inc., 194 Ariz. 62, 66 (1999). Therefore, we read a statute in the context of the law that grants it authority. Cf. S. Ariz. Home Builders Ass’n, 254 Ariz. at 286 ¶ 31.

¶17 If the statutory language is ambiguous—if “it can be reasonably read in two ways”—we may use alternative methods of statutory construction, including examining the rule’s historical background, its spirit and purpose, and the effects and consequences of competing interpretations. State v. Salazar-Mercado, 234 Ariz. 590, 592 ¶ 5 (2014); State v. Aguilar, 209 Ariz. 40, 47 ¶ 23 (2004). “A statute is not ambiguous merely because the parties disagree about its meaning,” it is ambiguous if the “meaning is not evident after examining the statute’s text as a whole or considering statutes relating to the same subject or general purpose.” Glazer v. State, 244 Ariz. 612, 614 ¶ 12 (2018).

B.

¶18 We first address Planned Parenthood’s claim that Title 36 creates a right to an abortion or otherwise independently authorizes elective abortion up to fifteen weeks’ gestation. Although Planned PLANNED PARENTHOOD V. KRISTIN MAYES/HAZELRIGG Opinion of the Court

Parenthood conceded at oral argument that Title 36 does not create a right to abortion, it maintained its argument that § 36-2322 codifies permissive authorization to perform abortions such that it repeals or restricts § 13-3603. Planned Parenthood and Hazelrigg’s Title 36 arguments center almost entirely on § 36-2322.

¶19 Section 36-2322 provides, in relevant part:

A. Except in a medical emergency, a physician may not perform, induce or attempt to perform or induce an abortion unless the physician or the referring physician has first made a determination of the probable gestational age of the unborn human being and documented that gestational age in the maternal patient’s chart and, if required, in a report required to be filed with the department . . . .

B. Except in a medical emergency, 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.

¶20 Planned Parenthood argues that, in order to statutorily restrict the availability of abortion, specifically through § 36-2322’s use of the terms “except” and “unless,” Title 36 must implicitly and necessarily authorize the procedure because “unless” is a conjunction meaning “except on the condition that” or “without the accompanying circumstances or condition that.” See Unless, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/unless (last visited Mar. 20, 2024). Accordingly, Planned Parenthood embraces the court of appeals’ holding that § 36-2322 “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.” Brnovich, 254 Ariz. at 406 ¶ 19 n.8.4 PLANNED PARENTHOOD V. KRISTIN MAYES/HAZELRIGG Opinion of the Court PLANNED PARENTHOOD V. KRISTIN MAYES/HAZELRIGG Opinion of the Court

the legislature enacted. We must interpret the statute in its proper context. This requires us to reconcile the legislature’s construction provision, which specifically preserves § 13-3603, and the text of § 36-2322, which is silent on, and ambiguous as to, its effect on § 13-3603. See Stambaugh v. Killian, 242 Ariz. 508, 509 ¶ 7 (2017); S. Ariz. Home Builders Ass’n, 254 Ariz. at 286 ¶ 31.

C.

¶23 To determine if Title 36 creates a right to abortion, or otherwise provides independent statutory authority to perform the procedure, as Planned Parenthood contends, we must consider S.B. 1164’s construction provision.

¶24 The legislature included a two-part construction provision in S.B. 1164, expressing its unequivocal intent that, in restricting elective abortion to fifteen weeks’ gestation, it did not create, recognize, or expand a right to an abortion, nor did it repeal § 13-3603’s proscription on elective abortion:

This act does not:

1. Create or recognize a right to abortion or alter generally accepted medical standards. The Legislature does not intend this act to make lawful an abortion that is currently unlawful.

2. Repeal, by implication or otherwise, section 13-3603, Arizona Revised Statutes, or any other applicable state law regulating or restricting abortion.

See 2022 Ariz. Sess. Laws ch. 105, § 2 (2d Reg. Sess.). The construction provision is part of the bill that legislators have before them and approve, and has the same force of law as codified law. See The Arizona Legislative Bill Drafting Manual 2021–2022 at 7.

¶25 We must consider the legislature’s construction provision in S.B. 1164 when discerning the act’s meaning because it is part of the bill the legislature approved. See, e.g., State ex rel. Ariz. Dep’t of Revenue v. Tunkey, 254 Ariz. 432, 438 ¶ 27 (2023) (Bolick, J., concurring) (“If the legislature agrees on findings, purposes, or definitions, it becomes our duty to PLANNED PARENTHOOD V. KRISTIN MAYES/HAZELRIGG Opinion of the Court

ascertain statutory meaning through those prisms.”); cf. S. Ariz. Home Builders Ass’n, 254 Ariz. at 286 ¶ 31; see also Kevin M. Stack, The Enacted Purposes Canon, 105 Iowa L. Rev. 283, 304–05 (2019); Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts 232 (2012) (“Legal drafters have the power . . . to limit the implications of their terms . . . .”).

¶26 Before we consider S.B. 1164’s construction provision, we first address Planned Parenthood’s contention that § 36-2322 does not create a right to abortion, but rather “allows” the procedure and, thus, provides independent statutory authorization for it. We reject this distinction. As Hazelrigg notes, because S.B. 1164 does not define “right,” we may rely on dictionary definitions. See Special Fund Div., 232 Ariz. at 113 ¶ 12. A “right” is a “privilege . . . secured . . . by law.” Right, Black’s Law Dictionary (11th ed. 2019). Here, we disagree that a statute that expressly disclaims creation of a right may be read to simultaneously create an independent statutory authorization akin to a right. Both describe a privilege secured by law.

¶27 Planned Parenthood argues that S.B. 1164’s construction provision against repeal of § 13-3603 “or any other applicable state law regulating or restricting abortion” clarifies the legislature’s intent to give every Title 36 provision effect, and any repeal of § 36-2322 would contravene this express legislative provision because the statute is part of Title 36. In other words, the legislature’s construction provision was designed to foreclose a reading of S.B. 1164 that would result in its own demise.

¶28 This interpretation does not withstand scrutiny. First, it is inconsistent with the plain meaning and manifest purpose of the construction provision—to clarify that § 36-2322’s enactment does not “create or recognize a right to abortion,” repeal the statutory ban on elective abortion, or repeal “any other applicable state law regulating or restricting abortion.” See 2022 Ariz. Sess. Laws. ch. 105, § 2 (2d Reg. Sess.) (emphasis added). Neither the construction provision’s text, nor its context, suggest that the legislature intended to create an independent statutory authority for abortion that would repeal § 13-3603. To do so would contravene its express preservation of § 13-3603’s ban on elective abortion, which the legislature neither repealed nor amended in any manner, and any other applicable law that regulated or restricted abortion. Second, any suggestion that the legislature crafted the construction provision to clarify its intent not PLANNED PARENTHOOD V. KRISTIN MAYES/HAZELRIGG Opinion of the Court

to repeal § 36-2322 by virtue of its own passage is absurd. See 4QTKIDZ, LLC v. HNT Holdings, LLC, 253 Ariz. 382, 385 ¶ 5 (2022) (noting that the plain, clear and unambiguous text of a statute controls unless it results in an absurdity). The construction provision must be read as reflecting the legislature’s intent not to repeal other laws akin to § 13-3603, not § 36-2322 itself.

¶29 A cursory review of the construction provision that the legislature “did not intend [S.B. 1164] to make lawful an abortion that is currently unlawful” seemingly engenders confusion, but its context and logic instead yield clarity. This provision can reasonably bear only one meaning: the legislature did not intend the act to codify an independent statutory right to an elective abortion before fifteen weeks’ gestation or otherwise repeal any other abortion laws more restrictive than S.B. 1164. Any other reading is implausible because, at the time of its passage, S.B. 1164 merely sought to restrict a federal constitutional right to abortion that the legislature was powerless to abolish. Under no scenario could the legislature’s restriction of a broader abortion right be construed to “make lawful an abortion that is currently unlawful” unless the act was misinterpreted to (1) override § 13-3603, the only provision in Arizona or federal law at the time that made an elective abortion before fifteen weeks’ gestation “currently unlawful” or (2) otherwise repeal more restrictive abortion statutes. 6 Thus, the provision must mean that the legislature “d[id] not intend [S.B. 1164] to make lawful an abortion that is currently unlawful [under § 13-3603 or any other statute more restrictive than S.B. 1164].” This is the only interpretation that is internally consistent with, and does not defeat, the remainder of S.B. 1164’s construction provision. And it helps that the legislature identified precisely which statute it meant to preserve: § 13-3603.

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¶30 Hazelrigg argues, and we agree, that the court of appeals misconstrued the legislature’s express intent embodied in S.B. 1164 by holding that the statutory scheme demonstrates that the legislature enacted S.B. 1164 with the design “to restrict—but not to eliminate—elective abortions.” Brnovich, 254 Ariz. at 406 ¶ 16. That was the statute’s effect, but the court of appeals divines a legislative purpose in a vacuum. At the time of S.B. 1164’s passage when Roe was still in effect, the legislature was devoid of authority to ban elective abortions without running afoul of the Supremacy Clause. Indeed, the legislature’s previous attempt to restrict elective abortion after twenty weeks’ gestation was enjoined. See Isaacson v. Horne, 716 F.3d 1213, 1231 (9th Cir. 2013). It is no surprise that the legislature merely intended “to restrict—but not to eliminate—elective abortions.” It could do no more. Further, at that time, abortion up to fifteen weeks’ gestation was already legal in Arizona, so there was no reason for the legislature to codify in statute a right that already existed under federal constitutional law.

¶31 In context, S.B. 1164 was not a legislative attempt to preserve a right to abortion in Arizona; instead, it was a significant legislative restriction on elective abortion. It is a strained interpretation, indeed, that transforms S.B. 1164—a legislative limitation of elective abortion and an express preservation of a statutory ban on all elective abortions—into an independent statutory authority for elective abortion that overrides § 13-3603 and survives Roe’s demise. See, e.g., Roberts v. State, 253 Ariz. 259, 267 ¶ 25 (2022) (noting that the “historical sequence” of statutory enactments and judicial decisions may inform statutory interpretation). We do not interpret the act to negate its own purpose. See King v. Burwell, 576 U.S. 473, 493 (2015).

D.

¶32 The court of appeals and Planned Parenthood’s interpretation of S.B. 1164 is particularly dubious in light of Arizona’s additional statutory provision that our laws “shall be interpreted and construed to acknowledge, on behalf of an unborn child at every stage of development, all rights, privileges and immunities available to other persons, citizens and residents of this state, subject only to the Constitution of the United States and decisional interpretations thereof by the United States Supreme Court.”

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A.R.S. § 1-219(A). 7 This statute further illustrates that access to abortion in Arizona is, and remains, confined to a federal constitutional right beyond the reach of Arizona’s legislature. Section 1-219(A), left untouched by § 36-2322, establishes the public policy of the state, provides additional interpretive guidance, and belies the notion that the legislature intended to create independent statutory authority for elective abortion.

¶33 Moreover, S.B. 1164’s construction provision mirrors provisions in numerous other bills codified in Title 36, demonstrating the consistency, gravity, and clarity of the legislature’s intent not to independently grant a right or authorize access to abortion. See, e.g., 2009 Ariz. Sess. Laws ch. 172, § 6 (1st Reg. Sess.); 2010 Ariz. Sess. Laws ch. 111, § 1 (2d Reg. Sess.); 2011 Ariz. Sess. Laws ch. 9, § 4 (1st Reg. Sess.); 2011 Ariz. Sess. Laws ch. 10, § 8 (1st Reg. Sess.); 2012 Ariz. Sess. Laws ch. 250, § 11 (2d Reg. Sess.); 2021 Ariz. Sess. Laws ch. 286, § 17 (1st Reg. Sess.).

E.

¶34 Planned Parenthood argues that the legislature’s failure to include an express statutory trigger provision repealing § 36-2322 upon Roe’s reversal evinces the legislature’s implicit intent to create an independent statutory authority for elective abortion up to fifteen weeks’ gestation that effectively repeals § 13-3603. Planned Parenthood emphasizes the import of the legislature’s omission because S.B. 1164 otherwise mirrors “Mississippi’s 15-week law,” which included an express statutory trigger. See Miss. Code Ann. § 41-41-191(8) (2018). We are unpersuaded.

¶35 Planned Parenthood and the dissent make much of the fact that Mississippi’s statutes, which largely parallel Arizona’s statutes at issue here, contain a “trigger provision” that specifies applicability of certain abortion provisions only in the event that Roe is overturned, whereas

7 Section 1-219(A) is preliminarily enjoined in federal court from enforcement “as applied to abortion care that is otherwise permissible under Arizona law.” Isaacson v. Brnovich, 610 F. Supp. 3d 1243, 1257 (D. Ariz. 2022). Thus, the injunction has no bearing on this Court’s authority to consider § 1-219(A) in interpreting the statutes before us or to determine whether abortion is permissible under Arizona law.

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Arizona’s do not. Under the divergent circumstances of the two state laws, the difference is of no consequence.

¶36 In 2007, Mississippi enacted Mississippi Code Annotated § 41-41-45(2), which provides in relevant part: “No abortion shall be performed or induced in the State of Mississippi, except in the case where necessary for the preservation of the mother’s life or where the pregnancy was caused by rape.” It was this law that included the express trigger provision, which provided that it would take effect ten days following a determination by the state attorney general that Roe was overturned and the statute would be constitutional. 2007 Miss. Laws ch. 441, § 6. Including an express trigger provision made sense given that Roe was in effect when Mississippi Code Annotated § 41-41-45 was enacted.

¶37 Of course, § 13-3603, the Arizona near-analog to § 41-41-45, does not have a trigger provision, for a simple and obvious reason: it was first enacted 109 years before Roe. Its subsequent recodifications, even after Roe, make clear the legislature’s determination to keep it on the books. A trigger provision would serve utterly no purpose. And even the dissent acknowledges that § 13-3603 has never been repealed and, following Dobbs, should be given effect. Infra ¶¶ 65, 88–91.

¶38 Mississippi subsequently enacted, among other laws restricting abortion, a fifteen-week gestational limit on abortions in 2018. Miss. Code Ann. § 41-41-191. This statute, like the similar § 36-2322(B), does not contain an express trigger provision. Rather, it contains a subsection entitled “Construction,” which provides in relevant part: “Nothing in this section shall be construed as creating or recognizing a right to abortion or as altering generally accepted medical standards. It is not the intention of this section to make lawful an abortion that is otherwise unlawful,” and “[a]n abortion that complies with this section, but violates any other law is unlawful.” Miss. Code Ann. § 41-41-191(8).

¶39 The bulk of this language is virtually identical to the construction provision in Arizona law—except that the Arizona language explicitly identifies one statute in particular that it does not “[r]epeal by implication or otherwise”: § 13-3603. Mississippi’s fifteen-week provision that “[a]n abortion that complies with [it], but violates any other law is unlawful”—which is absent from § 36-2322(B)’s construction provision—is PLANNED PARENTHOOD V. KRISTIN MAYES/HAZELRIGG Opinion of the Court

not dispositive, as the dissent contends. Infra ¶ 96. Just as the Mississippi fifteen-week law implicitly yields to the enforceability of § 41-41-45, Arizona’s fifteen-week law—§ 36-2322(B)—conforms its application to § 13-3603’s enforceability. To the extent the dissent suggests such language and construction serve as a trigger provision in the Mississippi statute, infra ¶¶ 94–95, it would obviously play the same role in the Arizona statute—indeed, even more so, by identifying a particular statute that is left intact.

¶40 Regardless, the absence of an express trigger provision is not dispositive here. We typically do not infer legislative intent from silence. Cf. Sw. Paint & Varnish Co. v. Ariz. Dep’t of Env’t Quality, 194 Ariz. 22, 25 ¶ 21 (1999) (noting that legislative acquiescence by silence is “limited to instances in which the legislature has considered and declined to reject the relevant judicial interpretation”). Second, in light of Title 36’s genesis as the statutory mechanism to restrict and regulate abortion in response to Roe, Dobbs’ elimination of a federal constitutional right to abortion removed the sole authority for elective abortion in Arizona necessitating many Title 36 regulations, including § 36-2322. Third, although the legislature did not include the express trigger provision that appears in Mississippi’s law, it was not silent on the issue. Despite the dissent’s requirement of an express trigger provision, infra ¶¶ 93–96, we conclude that the legislature made its intent known. The legislature’s unwavering and unqualified affirmative maintenance of a statutory ban on elective abortion since 1864 (albeit enjoined since 1973), S.B. 1164’s construction provision that the legislature did not intend to repeal § 13-3603 in passing § 36-2322, and § 1-219(A)’s public policy pronouncement that the rights of the “unborn child” were limited only by the federal Constitution and the Supreme Court’s interpretation of it, effectively constitute a discernible comprehensive trigger provision in the event of Roe’s demise.

F.

¶41 Planned Parenthood urges that we divine legislative intent from statements of “numerous public officials,” namely the former Governor, the Maricopa County Attorney, and the former Attorney General, concerning the meaning of § 36-2322. This reed is too thin to bear the interpretive weight Planned Parenthood places upon it. “We believe the best policy is not to consider nonlegislators’ statements to determine the PLANNED PARENTHOOD V. KRISTIN MAYES/HAZELRIGG Opinion of the Court

legislature’s intent concerning the specific application of a proposed statute, unless the circumstances provide sufficient guarantees that the statements reflect legislators’ views.” Hayes v. Cont’l Ins. Co., 178 Ariz. 264, 270 (1994). Here, we do not find these expressed opinions particularly illuminating or relevant as to legislative intent or the meaning of § 36-2322. As Hazelrigg notes, legislative and non-legislative statements support both parties’ interpretations. At most, conflicting statements made by public officials illustrate the novelty of the interpretative task presented to us by the legislature.

G.

¶42 Planned Parenthood contends that, like the court of appeals, we must harmonize §§ 13-3603 and 36-2322 to give effect to each. See, e.g., UNUM Life Ins. Co. of Am. v. Craig, 200 Ariz. 327, 329 ¶ 11 (2001) (“When two statutes appear to conflict, we will attempt to harmonize their language to give effect to each.”). We disagree. Our conclusion that the legislature did not intend to create a privilege secured by law to obtain or perform an abortion obviates the need to harmonize §§ 13-3603 and 36-2322. Harmonization between these laws may be accomplished only by repealing § 13-3603 in contravention of the legislature’s express intent and engaging in untenable statutory interpretation such as excising physicians from the plain meaning of “person” in § 13-3603, defined as “a human being” in A.R.S § 13-105(30). And indeed, despite purporting to harmonize the statutes, the dissent’s treatment of § 13-3603 all but nullifies it. We decline to do so. See Schatz v. Allen Matkins Leck Gamble & Mallory LLP, 198 P.3d 1109, 1120 (Cal. 2009) (“Courts ‘will infer the repeal of a statute only when . . . a subsequent act of the legislature clearly is intended to occupy the entire field covered by a prior enactment.’” (alteration in original) (citation omitted)).

¶43 Roe’s recognition of a right to an abortion was not absolute, and many states—including Arizona—legislatively restricted the time, place, and manner in which an abortion could be performed. Title 36 and the corresponding construction provisions were passed under Roe’s authority, and thus, must be interpreted through the mutating lens of the Supreme Court’s abortion jurisprudence. See Aguilar, 209 Ariz. at 47 ¶ 23. Through this lens it becomes clear that Title 36 is merely Arizona’s statutory mechanism for restricting and regulating Roe’s abortion right. And, as PLANNED PARENTHOOD V. KRISTIN MAYES/HAZELRIGG Opinion of the Court

Planned Parenthood concedes, Arizona has never independently created a statutory right to abortion. We will not “amend a statute judicially [nor] read implausible meaning into express statutory language” given the absence of an abortion right in Arizona jurisprudence. Kyle v. Daniels, 198 Ariz. 304, 306 ¶ 7 (2000). Therefore, because the federal constitutional right to abortion that overrode § 13-3603 no longer exists, the statute is now enforceable, prospectively prohibiting abortion unless necessary to save a woman’s life. See § 13-3603.

II.

¶44 We next consider the viability of the remaining portions of Title 36 in light of Planned Parenthood’s contention that simultaneous enforcement of § 13-3603 and Title 36 implicates physicians’ due process right to notice of potential criminal and regulatory liability for abortion-related conduct.

A.

¶45 We first clarify the effect of our Opinion on Title 36. Any portion of Title 36 solely applicable to elective abortion under the defunct federal constitutional right arguably may no longer be operative simply for want of purpose; what does not exist cannot be regulated. We refrain, however, from crafting an advisory opinion as to the operability of any Title 36 provision not squarely before us. The enforceability of Title 36 provisions must be revisited by the legislature or adjudicated by the courts as controversies arise.

¶46 Section 36-2322, however, is before us. We hold that it remains enforceable even though it was enacted solely to curtail the federal abortion right by criminalizing physicians’ performance of abortion after fifteen weeks’ gestation and adding other regulatory requirements concerning abortions performed due to “a medical emergency.” §§ 36-2322(C)(1)–(7), -2324(A). Although we conclude that the legislature enacted § 36-2322 to curtail elective abortion in lieu of enforcement of § 13-3603 that was then-enjoined under Roe, we do not attempt to—nor have we been requested to—divine the legislature’s intent in passing § 36-2322’s additional substantive criminal and regulatory provisions that exceed the scope of § 13-3603’s ban on elective abortion. If, in light of PLANNED PARENTHOOD V. KRISTIN MAYES/HAZELRIGG Opinion of the Court

§ 13-3603’s enforceability, a decision is to be made to rescind any provision in § 36-2322, it is the legislature’s prerogative.

¶47 Various other Title 36 provisions, in addition to § 36-2322, regulating abortion-related conduct and entailing criminal and regulatory sanctions remain relevant when § 13-3603’s elective abortion ban is enforceable. For example, Title 36’s abortion licensing requirements, A.R.S. § 36-449.02, reporting requirements, A.R.S. §§ 36-2161 to -2164, and emergency consent requirements, A.R.S. § 36-2153(C), may apply to abortions necessary to save a woman’s life. Moreover, other statutory provisions such as A.R.S. § 36-2302, which proscribes, subject to statutory exceptions, “use of a human fetus or embryo . . . [resulting from an abortion] for animal or human research,” remain relevant because they may implicate all abortion-related activity.

B.

¶48 Planned Parenthood contends that § 13-3603 and Title 36’s abortion-related criminal and regulatory provisions cannot coexist without implicating due process because the overlapping laws do not adequately apprise physicians of the contours of their criminal liability. We note that Planned Parenthood’s primary due process concern centers on the co-existence of criminal provisions in §§ 13-3603 and 36-2322, but its due process argument extends to § 13-3603’s potential overlap with other Title 36 criminal provisions.

¶49 United States v. Batchelder, 442 U.S. 114 (1979), a unanimous Supreme Court decision by Justice Thurgood Marshall, deals with precisely this question. In Batchelder, the Court rejected a claim that two federal criminal statutes could not coexist because Congress intended to enact two independent gun control statutes, each enforceable on its own terms. 442 U.S. at 123–24 (“This Court has long recognized that when an act violates more than one criminal statute,” the decisions of “[w]hether to prosecute and what charge[s] to file . . . generally rest in the prosecutor’s discretion.”). The Court determined that one statute cannot be interpreted as implicitly repealing another statute merely because a defendant’s conduct might violate both statutes. Id. at 122. The Court reasoned that, “it is ‘not enough to show that the two statutes produce differing results when applied to the same factual situation.’” Id. (quoting Radzanower v. Touche Ross & Co., 426 PLANNED PARENTHOOD V. KRISTIN MAYES/HAZELRIGG Opinion of the Court

U.S. 148, 155 (1976)). “Rather, the legislative intent to repeal must be manifest in the ‘positive repugnancy between the provisions.’” Id. (quoting United States v. Borden Co., 308 U.S. 188, 199 (1939)).

¶50 Our jurisprudence accords with Batchelder. We have consistently upheld the principle that the legislature may proscribe the same conduct through multiple laws and our criminal statutes are replete with examples of multiple laws applying to the same conduct. See, e.g., A.R.S. § 13-116 (“An act or omission which is made punishable in different ways by different sections of the laws may be punished under both . . . .”); State v. Jones, 235 Ariz. 501, 504 ¶ 13 (2014) (“The same conduct may result in different offenses . . . .”); Anderjeski v. City Court of Mesa, 135 Ariz. 549, 550 (1983) (“Although arising out of one act, the statutes describe two separate and distinct offenses.”); State v. Culver, 103 Ariz. 505, 507–08 (1968) (holding criminal statutes merely prohibiting the same conduct did not conflict where there was no positive repugnancy between the two laws); State v. O’Brien, 123 Ariz. 578, 583–84 (App. 1979) (“A specific statute does not supplant an earlier general statute unless all provisions are covered; that is, where the specific statute is narrower, the general one is not repealed. Where a single act violates more than one statute and there is no evidence of legislative intent to repeal one of them, the government has the option of prosecuting under either.” (internal citations omitted)); State v. Lopez, 174 Ariz. 131, 143 (1992) (“When conduct can be prosecuted under two or more statutes, the prosecutor has the discretion to determine which statute to apply.”). “So long as overlapping criminal provisions clearly define the conduct prohibited and the punishment authorized, the notice requirements of the Due Process Clause are satisfied.” Batchelder, 442 U.S. at 123.

¶51 Here, § 13-3603 prohibits “a person” from performing any abortion “unless it is necessary to save [a woman’s] life” and punishes a violation of the statute “by imprisonment in the state prison for not less than two years nor more than five years.” Section 36-2322(B), “[e]xcept in a medical emergency,” proscribes a physician from performing an abortion after fifteen weeks’ gestation and deems a violation of the statute a class 6 felony under § 36-2324. Thus, as in Batchelder, these statutes create overlapping criminal liability, but they also on their face “clearly define the conduct prohibited and the punishment authorized.” 442 U.S. at 123. The PLANNED PARENTHOOD V. KRISTIN MAYES/HAZELRIGG Opinion of the Court fact there is overlap between the two statutes does not violate due process notice requirements. Id.

¶52 In addition to overlapping criminal statutes, Planned Parenthood argues that § 13-3603’s criminal provision and Title 36’s regulatory scheme present physicians performing abortions with an unnavigable array of criminal and regulatory requirements. We disagree. Multi-title statutory regulation of conduct, particularly business and professional activity, is hardly unique to abortion. For example, employers confronting marijuana impairment at work are tasked with consulting both Title 23, Chapter 2, Article 14—the Drug Testing of Employees Act—and Title 36, Chapter 28.1—the Arizona Medical Marijuana Act. And, as Hazelrigg notes, doctors, lawyers, securities brokers, and commodities traders, among other professions, are also permissibly subject to overlapping criminal, civil, and regulatory laws. As long as these legal requirements clearly define prohibited conduct and the sanction, they do not implicate due process notice requirements. See Batchelder, 442 U.S. at 123. We do not conclude that a physician’s regulatory compliance burden in this arena is constitutionally distinguishable from any other regulated professional’s legal obligations.

¶53 In light of this Opinion, physicians are now on notice that all abortions, except those necessary to save a woman’s life, are illegal, see § 13-3603, and that additional criminal and regulatory sanctions may apply to abortions performed after fifteen weeks’ gestation, see §§ 36-2322, -2324, -2325. Physicians are tasked with otherwise comporting their conduct with Title 36’s requirements. See § 13-116; see also Lopez, 174 Ariz. at 143. The application of § 13-3603 and Title 36 to physicians’ conduct does not facially implicate constitutional due process concerns. 8 Our holding, of course, does not foreclose a physician from raising an as-applied due process

8 Pima County Attorney’s Office argues that § 13-3603’s “necessary to save [a pregnant woman’s] life” exception to the ban on abortion “would violate due process because it does not provide physicians clarity on how they should conform their conduct to the law in life- and health-threatening situations.” We decline to address this argument here because it is beyond the scope of the issue before us, a factual record was not developed in the trial court, and neither the trial court nor the court of appeals ruled on this issue. See Hawkins v. Allstate Ins. Co., 152 Ariz. 490, 503 (1987).

PLANNED PARENTHOOD V. KRISTIN MAYES/HAZELRIGG Opinion of the Court challenge on facts, and with a developed factual record, that are not before us.

III.

¶54 The dissent contends that the majority “errs by finding § 36-2322(B) ambiguous and then using the construction [provision] to interpret the statute in a way unsupported by its plain textual meaning,” infra ¶ 73, and also misplaces our focus “on whether § 36-2322(B) grants an affirmative right to an abortion akin to Roe’s recognition of a constitutional right,” infra ¶ 76. We address these points in turn.

¶55 We begin with the dissent’s assertion that § 36-2322(B) is unambiguous, which forecloses any consideration of Arizona’s abortion statutory history or the legislature’s clear statements of the statute’s intended effect on § 13-3603. Infra ¶ 73. The dissent misconstrues the nature of the ambiguity. There is no dispute that § 36-2322(B) unambiguously criminalizes physicians’ performance of elective abortion after fifteen weeks’ gestation. But the statute is silent and otherwise ambiguous as to its intended effect on § 13-3603—the sole issue before us. See Part I, B ¶¶ 21–22. Invocation of a menagerie of rules of statutory construction, infra ¶ 80, with which we agree and follow when applicable, does not change the fact that § 36-2322(B) is ambiguous most importantly not for what it says, but for what it does not say. See, e.g., State v. Sweet, 143 Ariz. 266, 269–70 (1985) (“The problem in interpreting the statute at issue is not that certain words or groups of words have more than one meaning, but it is the failure to include necessary words which causes confusion as to the scope of the statute.”). Because the statute’s text does not reveal its effect on § 13-3603, it is ambiguous. Id. And because it is ambiguous, we may consider the construction provision in determining § 36-2322(B)’s effect on § 13-3603. See Sakrison v. Pierce, 66 Ariz. 162, 172 (1947) (noting that the policy section of an act “would be controlling” in interpreting “an operative portion of the statute that was ambiguous or of doubtful meaning or application”).

¶56 Given § 36-2322(B)’s ambiguity concerning its effect on § 13-3603, we turn to the dissent’s curious claim that we misplace our focus “on whether § 36-2322(B) grants an affirmative right to an abortion akin to Roe’s recognition of a constitutional right.” Infra ¶ 76. The dissent subtly, PLANNED PARENTHOOD V. KRISTIN MAYES/HAZELRIGG Opinion of the Court

but critically, misconstrues our reasoning. To clarify, the issue before us is not whether, in the abstract, abortion not expressly proscribed by statute is legally permissible; it is whether § 36-2322(B)’s proscription on elective abortion after fifteen weeks’ gestation created statutory authorization for abortion before fifteen weeks’ gestation that repeals or limits § 13-3603’s total ban on elective abortions. Viewed through this lens, the dissent’s unremarkable claim that “[p]roscribing conduct does not require the legislature to grant people an affirmative right to engage in conduct falling outside the proscription,” infra ¶ 76, the corollary observation that “the legislature does not affirmatively grant a right by decriminalizing conduct,” infra ¶ 78 (emphasis omitted), and an illustration of these principles involving driving under the speed limit, infra ¶ 77, have no import. Here, our focus on whether § 36-2322(B)—in context rather than in a legal and historical vacuum—grants an affirmative right or statutory authorization or otherwise effectively repeals § 13-3603 is the question before us.

¶57 The dissent relies on United States v. Vuitch, 402 U.S. 62 (1971), a pre-Roe case, for the proposition that physicians may perform “abortions that are not expressly outlawed.” Infra ¶ 71. Vuitch is distinguishable; it does not elucidate the issue before us. In Vuitch, the Supreme Court, in upholding the District of Columbia’s abortion ban, noted that abortions performed pursuant to the statutory exception for abortions necessary to preserve a mother’s life or health were “legal.” 402 U.S. at 69–71. The Court’s recognition that an act is legal if performed pursuant to an express statutory exception to a proscribed act is unsurprising, but it has no relevance here. As noted, the issue in this case is not whether an abortion not expressly proscribed by law may be performed lawfully, it is whether § 36-2322(B)’s proscription on elective abortion after fifteen weeks’ gestation created statutory authorization to perform other abortions in violation of an existing statute, thus repealing or limiting § 13-3603. Vuitch simply did not address the effect of a law on a pre-existing statute.

¶58 The dissent, employing the general/specific canon, contends that § 36-2322(B) merely operates as an exception to § 13-3603 and “does not repeal any aspect of § 13-3603” because it “negates § 13-3603 only in its application to the situation that § 36-2322(B) covers.” Infra ¶¶ 87–89. Not so. “Repeal” means to “abrogat[e] . . . an existing law.” Repeal, Black’s Law Dictionary (11th ed. 2019). As the dissent acknowledges, “a physician who performs an abortion in compliance with § 36-2322(B) nevertheless violates PLANNED PARENTHOOD V. KRISTIN MAYES/HAZELRIGG Opinion of the Court

§ 13-3603.” Infra ¶ 85. The dissent’s interpretation renders lawful what is a crime under § 13-3603. Thus, under the dissent’s approach, § 36-2322(B) effectively repeals and supplants § 13-3603. The dissent’s reasoning is tenable only to the extent that it discounts statutory history, the legislature’s public policy pronouncement in § 1-219(A), and the construction provision that the legislature did not intend § 36-2322(B) to “repeal, by implication or otherwise, section 13-3603.” Although the dissent asserts that we elevate the construction provision over the statute’s text in discerning the legislature’s intent concerning § 36-2322(B)’s ambiguous effect on § 13-3603, infra ¶ 79, we decline to apply the general/specific canon to ignore the legislature’s plain statement in the approved bill that it did not intend for § 36-2322(B) to repeal § 13-3603, precisely the result obtained under the dissent’s statutory harmonization analysis.

¶59 The dissent notes that the legislature’s statement of intent concerning § 36-2322(B) described its objective “to restrict the practice of nontherapeutic or elective abortion to the period up to fifteen weeks of gestation,” but that, in the dissent’s view, “[n]othing suggests an intent to make abortions permitted under § 36-2322(B) unlawful upon Roe’s demise.” Infra ¶ 105. The legislature’s statement of intent and construction provision are not logically inconsistent. The intent statement expressed what the legislature intended § 36-2322(B) to do—restrict elective abortion after fifteen weeks’ gestation through penalties specified in Title 36—and the construction provision expressed what the legislature did not intend the law to do—repeal § 13-3603, “by implication or otherwise.”

¶60 Finally, the dissent invokes the adage that the legislature does not ordinarily “hide elephants in mouseholes,” which means that the legislature “does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions,” Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001). Infra ¶ 66. The dissent asserts that Whitman supports its contention that the Arizona Legislature could not have intended that, if Roe was overruled, the state would enforce § 13-3603, which was enjoined solely due to Roe’s recognition of a federal constitutional right to abortion. Infra ¶ 66. But here, the elephant is not hidden in a mousehole; rather, the elephant is standing in the room, albeit perhaps in a corner, despite the dissent’s refusal to acknowledge it.

PLANNED PARENTHOOD V. KRISTIN MAYES/HAZELRIGG Opinion of the Court

¶61 We do not, as the dissent implies, rest our conclusion solely on the construction provision. In interpreting § 36-2322(B)’s ambiguity on its effect on § 13-3603, we consider Title 36’s genesis as the statutory mechanism to restrict and regulate abortion in response to Roe, the legislature’s unwavering and unqualified affirmative maintenance of a statutory ban on elective abortion since 1864 (albeit enjoined since 1973), § 1-219(A)’s pronouncement of the state’s public policy essentially to restrict abortion to the extent permitted by “the Constitution of the United States and decisional interpretations thereof by the United States Supreme Court” and, finally, S.B. 1164’s construction provision that clearly states that the legislature did not intend to repeal § 13-3603 by passing § 36-2322(B). See Part I, E ¶ 40. It is the dissent’s interpretation—deliberately blind to Arizona’s relevant statutory history, public policy pronouncement, and the legislature’s explicit construction provision contradicting the dissent’s conclusion—that is strained. The only elephant hiding in a mousehole is the dissent’s contention that the legislature’s curtailment of access to elective abortion in § 36-2322 and its accompanying express preservation of a statutory ban on all elective abortions was intended to create an independent statutory authority for elective abortion that vitiates § 13-3603 and survives Roe’s demise. See Part I, C ¶ 31.

IV. ¶62 Hazelrigg requests attorney fees and costs under the private attorney general doctrine. Under the private attorney general doctrine, we may award attorney fees “to a party who has vindicated a right that: (1) benefits a large number of people; (2) requires private enforcement; and (3) is of societal importance.” Cave Creek Unified Sch. Dist. v. Ducey, 233 Ariz. 1, 8 ¶ 26 (2013) (quoting Arnold v. Ariz. Dep’t of Health Servs., 160 Ariz. 593, 609 (1989)). Despite Hazelrigg’s intervenor status, private enforcement was not required to resolve this case. In fact, then-Attorney General Brnovich initiated the trial court litigation, and Yavapai County Attorney Dennis McGrane sought to intervene. Therefore, because this case did not require private enforcement, we decline to award attorney fees and costs under the private attorney general doctrine.

PLANNED PARENTHOOD V. KRISTIN MAYES/HAZELRIGG Opinion of the Court

CONCLUSION

¶63 The abortion issue implicates morality and public policy concerns, and invariably inspires spirited debate and engenders passionate disagreements among citizens. A policy matter of this gravity must ultimately be resolved by our citizens through the legislature or the initiative process. Today, we decline to make this weighty policy decision because such judgments are reserved for our citizens. Instead, we merely follow our limited constitutional role and duty to interpret the law as written. See Ariz. Const. art 3; Ariz. Sch. Bds. Ass’n v. State, 252 Ariz. 219, 229 ¶ 45 (2022) (“We respect the role of the legislature in the discharge of its constitutional duties . . . and we heed our constitution’s fundamental premise that the division of powers necessarily impels judicial restraint, particularly in the realm of lawmaking.”). For the reasons discussed, the legislature has demonstrated its consistent design to restrict elective abortion to the degree permitted by the Supremacy Clause and an unwavering intent since 1864 to proscribe elective abortions absent a federal constitutional right—precisely what it intended and accomplished in § 36-2322. To date, our legislature has never affirmatively created a right to, or independently authorized, elective abortion. We defer, as we are constitutionally obligated to do, to the legislature’s judgment, which is accountable to, and thus reflects, the mutable will of our citizens.

¶64 We affirm the trial court’s judgment vacating the injunction of § 13-3603, vacate the court of appeals’ opinion and stay of enforcement of § 13-3603, and remand to the trial court for potential consideration of the remaining constitutional challenges to § 13-3603 alleged in Planned Parenthood’s complaint for declaratory relief. Although we lift the stay on enforcement of § 13-3603, we do so with two caveats. First, § 13-3603 may be enforced prospectively only. Second, we stay enforcement of § 13-3603 for fourteen calendar days from the filing date of this Opinion to permit the parties, on remand, to determine whether to pursue remaining issues raised in the trial court and, if so, to request further stay relief at the trial court’s discretion.

PLANNED PARENTHOOD V. KRISTIN MAYES/HAZELRIGG VICE CHIEF JUSTICE TIMMER, joined by CHIEF JUSTICE BRUTINEL, Dissenting PLANNED PARENTHOOD V. KRISTIN MAYES/HAZELRIGG VICE CHIEF JUSTICE TIMMER, joined by CHIEF JUSTICE BRUTINEL, Dissenting PLANNED PARENTHOOD V. KRISTIN MAYES/HAZELRIGG VICE CHIEF JUSTICE TIMMER, joined by CHIEF JUSTICE BRUTINEL, Dissenting PLANNED PARENTHOOD V. KRISTIN MAYES/HAZELRIGG VICE CHIEF JUSTICE TIMMER, joined by CHIEF JUSTICE BRUTINEL, Dissenting PLANNED PARENTHOOD V. KRISTIN MAYES/HAZELRIGG VICE CHIEF JUSTICE TIMMER, joined by CHIEF JUSTICE BRUTINEL, Dissenting PLANNED PARENTHOOD V. KRISTIN MAYES/HAZELRIGG VICE CHIEF JUSTICE TIMMER, joined by CHIEF JUSTICE BRUTINEL, Dissenting PLANNED PARENTHOOD V. KRISTIN MAYES/HAZELRIGG VICE CHIEF JUSTICE TIMMER, joined by CHIEF JUSTICE BRUTINEL, Dissenting PLANNED PARENTHOOD V. KRISTIN MAYES/HAZELRIGG VICE CHIEF JUSTICE TIMMER, joined by CHIEF JUSTICE BRUTINEL, Dissenting PLANNED PARENTHOOD V. KRISTIN MAYES/HAZELRIGG VICE CHIEF JUSTICE TIMMER, joined by CHIEF JUSTICE BRUTINEL, Dissenting PLANNED PARENTHOOD V. KRISTIN MAYES/HAZELRIGG VICE CHIEF JUSTICE TIMMER, joined by CHIEF JUSTICE BRUTINEL, Dissenting PLANNED PARENTHOOD V. KRISTIN MAYES/HAZELRIGG VICE CHIEF JUSTICE TIMMER, joined by CHIEF JUSTICE BRUTINEL, Dissenting PLANNED PARENTHOOD V. KRISTIN MAYES/HAZELRIGG VICE CHIEF JUSTICE TIMMER, joined by CHIEF JUSTICE BRUTINEL, Dissenting PLANNED PARENTHOOD V. KRISTIN MAYES/HAZELRIGG VICE CHIEF JUSTICE TIMMER, joined by CHIEF JUSTICE BRUTINEL, Dissenting PLANNED PARENTHOOD V. KRISTIN MAYES/HAZELRIGG VICE CHIEF JUSTICE TIMMER, joined by CHIEF JUSTICE BRUTINEL, Dissenting PLANNED PARENTHOOD V. KRISTIN MAYES/HAZELRIGG VICE CHIEF JUSTICE TIMMER, joined by CHIEF JUSTICE BRUTINEL, Dissenting PLANNED PARENTHOOD V. KRISTIN MAYES/HAZELRIGG VICE CHIEF JUSTICE TIMMER, joined by CHIEF JUSTICE BRUTINEL, Dissenting PLANNED PARENTHOOD V. KRISTIN MAYES/HAZELRIGG VICE CHIEF JUSTICE TIMMER, joined by CHIEF JUSTICE BRUTINEL, Dissenting PLANNED PARENTHOOD V. KRISTIN MAYES/HAZELRIGG VICE CHIEF JUSTICE TIMMER, joined by CHIEF JUSTICE BRUTINEL, Dissenting PLANNED PARENTHOOD V. KRISTIN MAYES/HAZELRIGG VICE CHIEF JUSTICE TIMMER, joined by CHIEF JUSTICE BRUTINEL, Dissenting