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Modern Statutory Interpretation

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Rt Hon Lord Justice Sales, Modern Statutory Interpretation, Statute Law Review , Volume 38, Issue 2, June 2017, Pages 125–132, https://doi.org/10.1093/slr/hmw041

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Most of the law which the courts are called on to apply is statutory. Yet statutory interpretation languishes as a subject of study. For the most part, law students are expected to pick it up by a sort of process of osmosis. It is more fun and engaging to study cases, as vignettes of real life. So the common law and common law method win out.

However, in many ways, modern statutory interpretation has become closer to common law method. By common law method, I mean the familiar process of extrapolation of underlying principles and values from disparate sources, with a view to identifying the particular rule to apply to the case in hand. In the last 40 years or so, the courts have used this sort of method in their approach to statutory interpretation both more widely and with increasing depth of effect. The words of a statute are taken as the starting point for analysis, rather than the start and finish. In some respects, they are not even the starting point, because the court goes through a process of orientation by reference to the context and subject matter of the statute to set a framework within which the words are to be read. Nonetheless, for the courts the words continue to be of critical importance. The final outcome has to be compatible with the language used and it controls the exercise of interpretation, even if often only in a relatively loose sense. How should one understand this process?

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STATUTORY INTERPRETATION FROM THE OUTSIDE

Kevin tobia,* brian g. slocum** & victoria nourse***.

How should judges decide which linguistic canons to apply in inter­preting statutes? One important answer looks to the inside of the legisla­tive process: Follow the canons that lawmakers contemplate. A different answer, based on the “ordinary meaning” doctrine, looks to the outside: Follow the canons that guide an ordinary person’s understanding of the legal text. We offer a novel framework for empirically testing linguistic canons “from the outside,” recruiting 4,500 people from the United States and a sample of law students to evaluate hypothetical scenarios that correspond to each canon’s triggering conditions. The empirical findings provide evidence about which traditional canons “ordinary meaning” actually supports.

This Essay’s theory and empirical study carry several further impli­cations. First, linguistic canons are not a closed set. We discovered possi­ble new canons that are not yet reflected as legal canons, including a “nonbinary gender canon” and a “quantifier domain restriction canon.” Second, we suggest a new understanding of the ordinary mean­ing doctrine itself, as one focused on the ordinary interpretation of rules, as opposed to the traditional focus on “ordinary language” generally. Third, many of the canons reflect that ordinary people interpret rules with an intuitive anti-literalism. This anti-literalism finding challenges textualist assumptions about ordinary meaning. Most broadly, we hope this Essay initiates a new research program in empirical legal interpretation. If ordinary meaning is relevant to legal interpretation, interpreters should look to evidence of how ordinary people actu­ally understand legal rules. We see our experiments as a first step in that new direction.

The full text of this Essay can be found by clicking the PDF link to the left.

* Associate Professor of Law, Georgetown University Law Center.

** Distinguished Professor of Law, University of the Pacific, McGeorge School of Law.

*** Ralph V. Whitworth Professor of Law, Georgetown University Law Center. For helpful comments, we thank Bernard Black, Bill Buzbee, Erin Carroll, Josh Chafetz, Christoph Engel, Andreas Engert, William Eskridge, Ezra Friedman, Brian Galle, Neal Goldfarb, Hanjo Hamann, Joe Kimble, Anita Krishnakumar, Tom Lee, Daniel Rodriguez, Corrado Roversi, Sarath Sanga, Mike Seidman, Amy Semet, Josh Teitelbaum, Michele Ubertone, and audiences at the Free University of Berlin Empirical Legal Studies Center, the Max Planck Institute for Research on Collective Goods, Georgetown University Law Center, Northwestern University Law School, the University of Chicago Law School, and the University of Bologna. For outstanding editorial assistance, we thank Larisa Antonisse and the staff of the Columbia Law Review . This empirical research was funded by the Swiss National Science Foundation Spark Grant for “The Ordinary Meaning of Law,” CRSK-1_190713.

Introduction

“American courts have no intelligible, generally accepted, and con­sistently applied theory of statutory interpretation.” 1 1 Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1169 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994). ... Close This Hart and Sacks lament is frequently quoted but misleading. 2 2 See David S. Louk, The Audiences of Statutes, 105 Cornell L. Rev. 137, 150 (2019) (“A common trope in discussions of statutory interpretation theory is that American judges lack a principled method of interpreting statutes, something legal theorists and members of the judiciary alike have long recognized.”). ... Close Despite extensive and ongo­ing debate about how to interpret statutes, most plausible theories share one common principle: a commitment to “ordinary meaning.” 3 3 See Brian G. Slocum, Ordinary Meaning: A Theory of the Most Fundamental Principle of Legal Interpretation 1–3 (2015) [hereinafter Slocum, Ordinary Meaning]; see also William N. Eskridge, Interpreting Law: A Primer on How to Read Statutes and the Constitution 33–41 (2016) [hereinafter Eskridge, Interpreting Law]; Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 33 (2012); Lawrence M. Solan, The Language of Statutes: Laws and Their Interpretation 53 (2010). ... Close This Essay focuses on statutory interpretation, but its theory and empirical analysis may extend more broadly. “Ordinary meaning” plays a crucial role in in­terpreting most legal texts: from contracts and wills, to treaties and the U.S. Constitution. 4 4 See, e.g., Cal. Civ. Code § 1644 (2018) (“The words of a contract are to be understood in their ordinary and popular sense . . . .”); Cal. Prob. Code § 21122 (2018) (“The words of an instrument are to be given their ordinary and grammatical meaning unless the intention to use them in another sense is clear and their intended meaning can be ascertained.”); Curtis J. Mahoney, Note, Treaties as Contracts: Textualism, Contract Theory, and the Interpretation of Treaties, 116 Yale L.J. 824, 829–32 (2007) (describing the Supreme Court’s recent approach to treaty interpretation, which often focuses on the plain meaning of terms in a treaty); Lawrence B. Solum, The Constraint Principle: Original Meaning and Constitutional Practice 3 (Apr. 3, 2019), https://ssrn.com/abstract=2940215 [https://perma.cc/P7JR-9RDM] (unpublished manuscript) (“The dominant strain of con- temporary originalism emphasizes the public meaning of the constitutional text . . . .”). ... Close Normatively, the doctrine often finds justification for “ordinary” language principles based on notice, predictability, and the no­tion that the public should be able to read, understand, and rely upon legal texts. 5 5 See William N. Eskridge Jr., Brian G. Slocum & Stefan Th. Gries, The Meaning of Sex : Dynamic Words, Novel Applications, and Original Public Meaning, 119 Mich. L. Rev. 1503, 1516–17 (2021) [hereinafter Eskridge et al., The Meaning of Sex]. ... Close

Increasingly, the Supreme Court has emphasized that the interpretive process begins by giving statutory language its ordinary meaning. 6 6 See, e.g., Bostock v. Clayton County, 140 S. Ct. 1731, 1738 (2020) (“This court normally interprets a statute in accord with the ordinary public meaning of its terms . . . .”); Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2364 (2019) (“In statutory interpretation disputes, a court’s proper starting point lies in a careful examination of the ordinary meaning and structure of the law itself.”). ... Close For some, interpretation begins and ends with ordinary meaning. Modern tex­tualists believe that ordinary meaning should significantly constrain inter­pretation; other considerations enter only if ordinary meaning is indeter­minate. 7 7 See, e.g., Victoria Nourse, Textualism 3.0: Statutory Interpretation After Justice Scalia, 70 Ala. L. Rev. 667, 669 (2019) (acknowledging but questioning the premise that ordinary meaning constrains as between results in a case). ... Close Purposivists agree that ordinary meaning is at least relevant to interpretation, 8 8 See, e.g., Eskridge, Interpreting Law, supra note 3, at 35 (“There are excellent reasons for the primacy of the ordinary meaning rule.”). ... Close alongside other criteria including legislative intent (typi­cally ascertained via legislative history). 9 9 See Robert A. Katzmann, Judging Statutes 31–35 (2014) (explaining the purposivist approach to statutory interpretation). ... Close Few deny that ordinary meaning is regularly deployed by all members of the current Supreme Court. 10 10 As Justice Elena Kagan famously declared of the Court, “We’re all textualists now.” Harvard Law School, The Scalia Lecture: A Dialogue with Justice Kagan on the Reading of Statutes, YouTube, at 08:29 (Nov. 25, 2015), https://youtu.be/dpEtszFT0Tg (on file with the Columbia Law Review ). This statement depends upon an essential ambiguity: whether one begins or ends with the text. ... Close Con­sider the Court’s recent landmark decision in Bostock v. Clayton County . 11 11 140 S. Ct. 1731. ... Close The Justices divided sharply, but all the opinions—both the majority and two dissents—invoked “ordinary meaning” in determining whether the term “sex” in Title VII’s antidiscrimination provision includes sexual orientation and transgender discrimination. 12 12 Id. at 1750 (Gorsuch, J.) (“[T]he law’s ordinary meaning at the time of enactment usually governs . . . .”); id. at 1767 (Alito, J., dissenting) (“The ordinary meaning of discrimination because of ‘sex’ was discrimination because of a person’s biological sex, not sexual orientation or gender identity.”); id. at 1825 (Kavanaugh, J., dissenting) (“[C]ourts must follow ordinary meaning, not literal meaning.”). ... Close Not surprisingly, cutting-edge statutory interpretation theory has turned its focus on “ordinary meaning.” 13 13 E.g., Tara Leigh Grove, Which Textualism?, 134 Harv. L. Rev. 265 (2020); Anita S. Krishnakumar, MetaRules for Ordinary Meaning, 134 Harv. L. Rev. Forum 167 (2021) [hereinafter Krishnakumar, MetaRules]; Thomas R. Lee & Stephen C. Mouritsen, Judging Ordinary Meaning, 127 Yale L.J. 788 (2018); James A. Macleod, Finding Original Public Meaning, 56 Ga. L. Rev. (forthcoming 2021), https://ssrn.com/abstract=3729005 [https://perma.cc/8DCR-EFK6] [hereinafter Macleod, Finding Original Public Meaning]; Slocum, Ordinary Meaning, supra note 3; Lawrence M. Solan & Tammy Gales, Finding Ordinary Meaning in Law: The Judge, the Dictionary, or the Corpus?, 1 Int’l J. Legal Discourse 253 (2016); Kevin P. Tobia, Testing Ordinary Meaning, 134 Harv. L. Rev. 726 (2020) [hereinafter Tobia, Testing Ordinary Meaning]; Kevin Tobia & John Mikhail, Two Types of Empirical Textualism, 86 Brook. L. Rev. 461 (2021). ... Close

In fact, “ordinary meaning” is likely to grow in importance. Figure 1 reflects citations to “ordinary meaning,” “plain meaning,” and “legislative history” across six million U.S. cases in Harvard Law School’s Caselaw Ac­cess Project. Over the past fifty years, citation to “ordinary meaning” has tripled. By way of comparison, citation to “legislative history” has halved from its peak.

Figure 1. U.S. Case Law Citations to Ordinary Meaning, Plain Meaning, and Legislative History 14 14 [1]. Caselaw Access Project, Harv. L. Sch. (2018) (retrieved Nov. 2, 2021). ... Close

These patterns provide a rough impression of interpretive trends. More robust empirical work supports the same conclusion, particularly in high-profile Supreme Court cases. A recent study of the Supreme Court’s use of interpretive tools found that between 2005 and 2017, the Roberts Court relied on “text” and “plain meaning” in 41% of all opinions and 50% of majority opinions. 15 15 Anita S. Krishnakumar, Cracking the Whole Code Rule, 96 N.Y.U. L. Rev. 76, 97 (2021). ... Close The Court relied on text more than intent, purpose, or legislative history. 16 16 See id. ... Close The Court has recently gained three new textualists, as lower federal courts welcome a new cohort of exceptionally young judges, similarly committed to textualism. 17 17 See John Gramlich, How Trump Compares With Other Recent Presidents in Appointing Federal Judges, Pew Rsch. Ctr. (Jan. 13, 2021), https://www.pewresearch.org/fact-tank/2021/01/13/how-trump-compares-with-other-recent-presidents-in-appointing-federal-judges/ [https://perma.cc/R7L9-4D8P]; Moiz Syed, Charting the Long-Term Impact of Trump’s Judicial Appointments, ProPublica (Oct. 30, 2020), https://projects.propublica.org/trump-young-judges/ [https://perma.cc/W3AX-YRR3] (explaining that President Trump appointed a record number of federal judges and that his appointees to the Supreme Court and appeals courts are younger than appointees by presidents going back to President Nixon by about four years on average); see also Jason Zengerle, How the Trump Administration Is Remaking the Courts, N.Y. Times Mag. (Aug. 22, 2018), https://www.nytimes.com/2018/08/22/magazine/trump-remaking-courts-judiciary.html (on file with the Columbia Law Review ) (noting President Trump’s “commit[ment] to . . . nominating and appointing judges that are committed originalists and textualists” (internal quotation marks omitted) (quoting Donald McGahn, White House counsel to President Trump)). ... Close

So how do courts determine a statute’s “ordinary meaning”? Sometimes the debate centers on the meaning of individual terms, 18 18 See Victoria Nourse, Misreading Law, Misreading Democracy 18 (2016) [hereinafter Nourse, Misreading Law] (arguing that there are almost always two apparent meanings for key terms). ... Close with judges increasingly relying on tools like dictionaries. 19 19 See, e.g., James J. Brudney & Lawrence Baum, Oasis or Mirage: The Supreme Court’s Thirst for Dictionaries in the Rehnquist and Roberts Eras, 55 Wm. & Mary L. Rev. 483, 493 (2013) (arguing that dictionaries have been “overused and abused by the Court”). ... Close Dictionaries provide evi­dence about how individual terms are used in nonlegal communications. 20 20 Although dictionaries can provide general information about word meanings, the judicial practice of relying on dictionaries to define statutory terms is fraught with problems. See Ellen P. Aprill, The Law of the Word: Dictionary Shopping in the Supreme Court, 30 Ariz. St. L.J. 275, 297–30 (1998) (stating that the level of “linguistic analysis” performed by courts rarely rises above “dictionary shopping”). ... Close But statutes contain complex expressions, with terms embedded in specific contexts. 21 21 See generally Peter M. Tiersma, Some Myths About Legal Language, 2 Law, Culture & Humanities 29 (2005) [hereinafter Tiersma, Myths] (explaining that the way legal texts are drafted adds to their complexity). ... Close This complexity raises difficult questions about the relationship between the conventional meaning of a term and its context.

Often, contextual patterns are so frequently repeated that they are taken to trigger regular assumptions about “ordinary meaning.” Take the well-known case of McBoyle v. United States , which required the Court to determine whether an airplane is a “vehicle” under the National Motor Vehicle Theft Act. 22 22 283 U.S. 25, 25–26 (1931). ... Close This Act punishes those who knowingly transport a stolen “automobile, automobile truck, automobile wagon, motor cycle, or any other self-propelled vehicle not designed for running on rails.” 23 23 See id. ... Close Jus­tice Oliver Wendell Holmes Jr., writing for the Court, found that the stat­ute did not apply to an aircraft: An airplane is not a vehicle. 24 24 See id. at 26. ... Close

If one focuses on the term “vehicle,” the Court’s conclusion might seem puzzling. Isn’t an airplane a vehicle? 25 25 Some have questioned whether the ordinary meaning of “vehicle” includes air- planes. See Lee & Mouritsen, supra note 13, at 840. Nevertheless, even if some doubt exists, the specific context in McBoyle significantly bolstered the Court’s claim that an airplane was not a vehicle. See McBoyle , 283 U.S. at 26. ... Close But any puzzlement lessens when we consider the ordinary meaning of “vehicle” in context . The general words, “any other . . . vehicle,” come after a long list of more spe­cific terms: automobile, automobile truck, automobile wagon, and motor­cycle. 26 26 McBoyle , 283 U.S. at 26. ... Close Perhaps, based on this context, an ordinary reader would under­stand the statutory rule to be more specific: “Vehicle” refers to automobiles, motorcycles, and similar entities, like buses, that are designed for traveling on land. But vehicles of a very different nature (e.g., canoes or airplanes) are not “vehicles” in this context. 27 27 For Justice Brett Kavanaugh, even the question whether a baby stroller is a vehicle in this context may be difficult. See Bostock v. Clayton County, 140 S. Ct. 1731, 1825 (2020) (Kavanaugh, J., dissenting) (asserting that a “statutory ban on ‘vehicles in the park’ would literally encompass a baby stroller” but that “the word ‘vehicle,’ in its ordinary meaning, does not encompass baby strollers”). ... Close “Vehicle” thus communicates something different when it is placed at the end of a list in a rule. The ejusdem generis canon captures this intuition: When general words follow an enumerated class of things, the general words should be construed to apply to things of the same general nature. 28 28 See Larry Alexander, Bad Beginnings, 145 U. Pa. L. Rev. 57, 65 (1996) (“When general words follow specific words in a statute, the general words are to be given a ‘sense analogous to that of the particular words.’” (quoting Scott Brewer, Exemplary Reasoning: Semantics, Pragmatics, and the Rational Force of Legal Argument by Analogy, 109 Harv. L. Rev. 923, 937 (1996))); see also infra section I.C. ... Close Thus, a statute referring just to “vehicles” may include airplanes as vehicles, but a statute that includes “vehicles” at the end of a list of specific examples might con­vey a different, narrower meaning.

Judges rely heavily on dozens of interpretive principles like ejusdem generis . 29 29 See William N. Eskridge, Jr., Philip P. Frickey, Elizabeth Garrett & James J. Brudney, Cases and Materials on Legislation and Regulation: Statutes and the Creation of Public Policy 1195–215 (5th ed. 2014) [hereinafter Eskridge et al., Cases and Materials 2014] (identifying at least 161 different interpretive canons). ... Close These principles are so long standing and frequently applied that they are referred to as “canons” of interpretation. 30 30 See id. at 1195. ... Close In fact, judges cite in­terpretive canons more frequently now than in the past. 31 31 See Anita S. Krishnakumar & Victoria F. Nourse, The Canon Wars, 97 Tex. L. Rev. 163, 167 (2018) (arguing that recent Supreme Court cases have focused extensively on the canons of construction); Nina A. Mendelson, Change, Creation, and Unpredictability in Statutory Interpretation: Interpretive Canon Use in the Roberts Court’s First Decade, 117 Mich. L. Rev. 71, 73 (2018) (“The lion’s share of Roberts Court majority opinions engages at least one interpretive canon in resolving a question of statutory meaning.” ). ... Close Yet, some courts and commentators also criticize canons as unjustified. 32 32 See, e.g., Jesse M. Cross, When Courts Should Ignore Statutory Text, 26 Geo. Mason L. Rev. 453, 459–60 (2018) (arguing that many canons of construction must be modified or discarded because they are inaccurate). ... Close

Debates about canons’ justification center on two very different em­pirical questions. One concerns whether legislative authors contemplate the canon when drafting. 33 33 See, e.g., Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation From the Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stan. L. Rev. 901, 906–07 (2013) [hereinafter Gluck & Bressman, Statutory Interpretation Part I] (surveying congressional staff and finding that many either ignore or reject certain canons). ... Close The other concerns whether the canon reflects how ordinary people reading the statute would understand the language. 34 34 Cf. William N. Eskridge Jr. & Victoria F. Nourse, Textual Gerrymandering: The Eclipse of Republican Government in an Era of Statutory Populism, N.Y.U. L. Rev. (forthcoming 2021) (manuscript at 4), https://ssrn.com/abstract=3809925 [https://perma.cc/SE3M-CGP4] (noting some scholars’ concern that canons may be manipulated to “create an arbitrary façade of plain meaning”). These explanations of the justifications are slightly oversimplified. In each case, it is possible that a canon might be justified even if the authors or audience could not themselves name the canon. For example, even if legislative drafters are unfamiliar with the term “ ejusdem generis ,” it might be that applying the rule nevertheless helpfully captures features of intended meaning. Similarly, most non-lawyers would be unfamiliar with the term “ ejusdem generis .” But it might be that the rule nevertheless helps explain how ordinary people understand statutory language. In each case, the key empirical question is about whether applying the canon brings interpreters closer to meaning—intended or ordinary. ... Close William Eskridge and Victoria Nourse have described these justifications as grounded in the “production” versus the “consumer” economies of statutory interpretation. 35 35 See id. at 2. ... Close The production economy emphasizes the statute’s authors; the consumer economy emphasizes its readers. 36 36 See id. ... Close

The empirical claim that canons reflect the meanings of the statute’s producers or authors motivated Abbe Gluck and Lisa Bressman’s seminal work: Statutory Interpretation from the Inside . 37 37 Gluck & Bressman, Statutory Interpretation Part I, supra note 33, at 905. ... Close In 2013, Gluck and Bressman published a survey of 137 congressional staffers from both chambers of Congress on topics relating to statutory interpretation, including the staf­fers’ knowledge and use of interpretive canons. 38 38 See Lisa Schultz Bressman & Abbe R. Gluck, Statutory Interpretation From the Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II, 66 Stan. L. Rev. 725, 728 (2014) [hereinafter Bressman & Gluck, Statutory Interpretation Part II]; Gluck & Bressman, Statutory Interpretation Part I, supra note 33, at 905–06. Judges have cited the Gluck and Bressman studies for the proposition that canons should not be used in interpretation since they are not deployed by drafters. See, e.g., James v. Heinrich, 960 N.W.2d. 350, 380 (Wis. 2021) (Dallett, J., dissenting). Our study focuses on a different population, ordinary readers, and suggests that ordinary readers understand law consistently with many (but not all) linguistic canons. ... Close The survey, designed to explore the role the realities of legislative drafting should play in the the­ories and doctrines of statutory interpretation, revealed that there are some canons the drafters know and use, some the drafters reject in favor of other considerations, and some the drafters do not know as rules but that seem to accurately reflect how Congress drafts. 39 39 See Bressman & Gluck, Statutory Interpretation Part II, supra note 38, at 732–33. In 2002, Victoria Nourse and Jane Schacter published the first case study of legislative drafting by Senate Judiciary Committee staffers, assuming that, of all congressional staffers, these were the “ most likely to be schooled in the rules of clarity, canons of construction, and statutory interpretation.” Victoria F. Nourse & Jane S. Schacter, The Politics of Legislative Drafting: A Congressional Case Study, 77 N.Y.U. L. Rev. 575, 582 (2002). The authors found that canons were not a “central part” of the drafting process. Id. at 614. As one staffer explained, “[W]e are conscious of . . . what a court will do, but not at the level of expressio unius .” Id. at 601. In future work, we hope to ask congressional staffers the same questions we have posed to ordinary readers in this study. ... Close

Critics of Gluck and Bressman, however, maintain that “insiders’” views on canons are not the relevant measure; such studies simply seek to unearth an unfathomable congressional mind. 40 40 John F. Manning, Without the Pretense of Legislative Intent, 130 Harv. L. Rev. 2397, 2430–31 (2017); see also Amy Coney Barrett, Congressional Insiders and Outsiders, 84 U. Chi. L. Rev. 2193, 2200–01 (2017) (arguing that Gluck and Bressman take the position of the “hypothetical insider who knows how Congress works” whereas the textualist insists that the “relevant user of language be ordinary ”); John F. Manning, Inside Congress’s Mind, 115 Colum. L. Rev. 1911, 1941 (2015) [hereinafter Manning, Inside Congress’s Mind] (arguing that the Gluck and Bressman studies support skepticism about looking for answers in Congress’s mind). ... Close Rather than focus on the producers of statutes, they urge focus on the consumers of statutes, the ordinary reader. As Justice Samuel Alito just urged  in  the  2020–2021  Term,  canons  are  only  useful  if  they  reflect  ordinary meaning. 41 41 See Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 1175 (2021) (Alito, J., concurring). For the theoretical importance of ordinary meaning, see Slocum, Ordinary Meaning, supra note 3, at 1–3. ... Close That is, a canon’s validity comes from ordinary people’s linguistic practices. The key question would be: Is the canon a guide to how ordinary people would under­stand the language in the statute? For example, when considering the stat­ute at issue in McBoyle , would an ordinary person implicitly understand that the scope of “any other . . . vehicle” is partly restricted—meaning not literally any vehicle but only those sufficiently similar to the enumerated ones? If yes, this would support an empirically based justification for ejusdem generis , grounded not in legislative intent or practice but in ordi­nary meaning. 42 42 It would also suggest that “any vehicle” does not always mean literally any vehicle. We propose a new ordinary meaning canon, the “quantifier domain restriction canon,” that reflects this possibility. See infra section I.C. ... Close

The Supreme Court increasingly relies on text and ordinary meaning to resolve interpretive disputes, as do lower courts. 43 43 See supra notes 6–17 and accompanying text (noting courts’ increasing reliance on text and ordinary meaning). ... Close This calls for a complement to Gluck and Bressman’s groundbreaking empirical work, namely a new analysis of statutory interpretation from the outside . Recently, Chief Justice John Roberts alluded to this intriguing possibility in oral argument:

[If] our objective is to settle upon the most natural meaning of the statutory language to an ordinary speaker of English . . . the most probably useful way of settling all these questions would be to take a poll of 100 ordinary . . . speakers of English and ask them what [the statute] means, right? 44 44 Transcript of Oral Argument at 51–52, Facebook, Inc. , 141 S. Ct. 1163 (No. 19-511), https://www.supremecourt.gov/oral_arguments/argument_transcripts/2020/19-511_l537.pdf [https://perma.cc/XEP7-QBE5]. ... Close

Such an approach was once considered beyond legal academics’ ca­pacity, 45 45 See Adrian Vermeule, Interpretation, Empiricism, and the Closure Problem, 66 U. Chi. L. Rev. 698, 701 (1999) (“Many of the empirical questions relevant to the choice of interpretive doctrines are . . . unanswerable, at least at an acceptable level of cost or within a useful period of time.”). ... Close but no more. There is a rich and growing literature in psychology, linguistics, and cognitive science concerning people’s understanding of language. 46 46 See, e.g., Dirk Geeraerts, Theories of Lexical Semantics 230 (2010) (“[N]ew word senses emerge in the context of actual language use.”). ... Close In law, the new field of “experimental jurisprudence” has already demonstrated that scholars can conduct experiments to better understand the ordinary cognition of law. 47 47 The field builds on work in experimental philosophy. See, e.g., Joshua Knobe & Shaun Nichols, An Experimental Philosophy Manifesto, in Experimental Philosophy 3 (Joshua Knobe & Shaun Nichols eds., 2008); Stephen Stich & Kevin P. Tobia, Experimental Philosophy and the Philosophical Tradition, in A Companion to Experimental Philosophy 5 (Justin Sytsma & Wesley Buckwalter eds., 2016). For an empirical study assessing the replicability of experimental philosophy studies, see Florian Cova, Brent Strickland, Angela Abatista, Aurélien Allard, James Andow, Mario Attie, James Beebe, Renatas Berniūnas, Jordane Boudesseul, Matteo Colombo, Fiery Cushman, Rodrigo Diaz, Noah N’Djaye, Nikolai van Dongen, Vilius Dranseika, Brian D. Earp, Antonio Gaitán Torres, Ivar Hannikainen, José V. Hernández-Conde, Wenjia Hu, François Jaquet, Kareem Khalifa, Hanna Kim, Markus Kneer, Joshua Knobe, Miklos Kurthy, Anthony Lantian, Shen-yi Liao, Edouard Machery, Tania Moerenhout, Christian Mott, Mark Phelan, Jonathan Phillips, Navin Rambharose, Kevin Reuter, Felipe Romero, Paulo Sousa, Jan Sprenger, Emile Thalabard, Kevin Tobia, Hugo Viciana, Daniel Wilkenfeld & Xiang Zhou, Estimating the Reproducibility of Experimental Philosophy, 12 Rev. Phil. & Psych. 9 (2021). See generally The Cambridge Handbook of Experimental Jurisprudence (Kevin Tobia ed., forthcoming). ... Close Thus far, those studies have focused on central legal concepts, such as causation, 48 48 See Joshua Knobe & Scott Shapiro, Proximate Cause Explained: An Essay in Experimental Jurisprudence, 88 U. Chi. L. Rev. 165 (2021); James A. Macleod, Ordinary Causation: A Study in Experimental Statutory Interpretation, 94 Ind. L.J. 957 (2019). ... Close con­sent, 49 49 See Roseanna Sommers, Commonsense Consent, 129 Yale L.J. 2232 (2020). ... Close intent, 50 50 See Markus Kneer & Sacha Bourgeois-Gironde, Mens Rea Ascription, Expertise and Outcome Effects: Professional Judges Surveyed, 169 Cognition 139 (2017); Sydney Levine, John Mikhail & Alan M. Leslie, Presumed Innocent? How Tacit Assumptions of Intentional Structure Shape Moral Judgment, 147 J. Experimental Psych.: Gen. 1728 (2018). ... Close reasonableness, 51 51 See Christopher Brett Jaeger, The Empirical Reasonable Person, 72 Ala. L. Rev. 887 (2021); Kevin P. Tobia, How People Judge What Is Reasonable, 70 Ala. L. Rev. 293 (2018) [hereinafter Tobia, How People Judge What Is Reasonable]. ... Close law itself, 52 52 E.g., Brian Flanagan & Ivar R. Hannikainen, The Folk Concept of Law: Law Is Intrinsically Moral, Australasian J. Phil. (2020); Ivar R. Hannikainen, Kevin P. Tobia, Guilherme da F. C. F. de Almeida, Raff Donelson, Vilius Dranseika, Markus Kneer, Niek Strohmaier, Piotr Bystranowski, Kristina Dolinina, Bartosz Janik, Sothie Keo, Eglė Lauraitytė, Alice Liefgreen, Maciej Próchnicki, Alejandro Rosas & Noel Struchiner, Are There Cross-Cultural Legal Principles? Modal Reasoning Uncovers Procedural Constraints on Law, Cognitive Sci., Aug. 2021, at 1. ... Close and many others. 53 53 Kevin P. Tobia, Law and the Cognitive Science of Ordinary Concepts, in Law and Mind: A Survey of Law and the Cognitive Sciences 86 (2021) (examining the relationship between folk psychology (laypeople’s commonsense understandings) and the law); Kevin P. Tobia, Experimental Jurisprudence, 89 U. Chi. L. Rev. (forthcoming 2022), https://ssrn.com/abstract=3680107 [https://perma.cc/XJW9-SYJV] [hereinafter Tobia, Experimental Jurisprudence] (debunking myths about experimental jurisprudence and arguing that it is a form of traditional jurisprudence rather than a social scientific replacement of jurisprudence). ... Close Other studies have focused on how ordinary people understand word meanings or how they would resolve specific interpretive disputes. 54 54 See, e.g., Omri Ben-Shahar & Lior Jacob Strahilevitz, Interpreting Contracts via Surveys and Experiments, 92 N.Y.U. L. Rev. 1753, 1765 (2017); Shlomo Klapper, Soren Schmidt & Tor Tarantola, Ordinary Meaning From Ordinary People (unpublished manuscript) (on file with the Columbia Law Review ). ... Close But, as the McBoyle case suggests, the ordinary meaning of statutes does not arise solely from individual word meanings, and commonly occurring types of context and inferences are also important topics of study. Statutes are writ­ten in sentences, which must be interpreted in light of relevant context in order to understand the rules expressed. An important legal-interpretive question concerns how ordinary people tend to understand this kind of language.

This Essay takes a first step in this new direction: the empirical study of interpretive canons from an ordinary meaning perspective. Surveying ordinary people might seem straightforward, but designing useful experiments requires very careful theory. In Part I, we develop a framework for empirically testing interpretive canons. We describe the three relevant el­ements of interpretive canons (triggering, application, and cancellation) and explain that the triggering element is our focus. A canon’s “trigger” is the linguistic condition making the canon applicable, such as a comma or a certain word or type of phrase. 55 55 See infra section I.A. ... Close This focus, we argue, is necessary to determine whether ordinary people implicitly apply an interpretive canon in accordance with its definition. In addition, focusing on canon triggers has the potential to help resolve longstanding interpretive problems that have plagued courts, such as poorly defined canons and conflicts between canons.

In Parts II and III, we implement our framework through a survey of 4,500 demographically representative people recruited from the United States, as well as a sample of over one-hundred first-year U.S. law students. The survey tested over a dozen interpretive canons. 56 56 The canons tested include what we term “Category One” canons, which have relatively straightforward triggering conditions, as well as “Category Two” canons, which have more complex triggering conditions. For a list of the canons and their definitions, see infra Part II. ... Close Our study provides crucial evidence for textualists and others committed to ordinary meaning. Currently, judges and scholars assume that certain canons reflect or­dinary meaning on the basis of intuition or tradition. The survey directly addresses this fundamental empirical question about ordinary meaning: Which (if any) of the interpretive canons actually reflect how ordinary peo­ple understand language? 57 57 The survey posed hypothetical scenarios, corresponding to each canon’s triggering conditions, to determine whether ordinary people implicitly invoke the canons when interpreting both legal and nonlegal rules. To preview our findings: Many existing interpretive canons reflect how ordinary people understand rules, but some popular canons do not. For instance, ordinary people interpret rules in ways that correspond with various longstanding canons such as ejusdem generis and noscitur a sociis but not in accordance with the popular but frequently criticized canon expressio unius est exclusio alterius . In addition, ordinary people implicitly resolve the conflict between the series-qualifier canon and the rule of the last antecedent by interpreting modifiers consistently with the series-qualifier canon. ... Close

Part IV considers three broader implications of our work for statutory interpretation theory. First, the results support a new approach toward “or­dinary meaning” itself. There is great debate concerning whether that doc­trine refers to the ordinary meaning of (1) “legal language” or (2) “ordi­nary language.” We find that people intuitively apply canons across both legal and ordinary rules. That is, surprisingly little turns on whether people understand language as ordinary or legal, so long as it is language in a rule. We suggest that the legal/ordinary language dichotomy obscures a more fundamental aspect of the ordinary meaning doctrine: It is a doctrine about ordinary understanding of language in rules . The canons do not nec­essarily apply wherever there is “ordinary language” or “legal language”; rather, they apply to interpretation of rules . A judge who fails to appreciate the significance of “rule-like” contextual features may misinterpret ordinary meaning from “the outside.” For example, dictionary def­initions that are not based on rule-like contexts may not reflect the under­standing of “ordinary readers.”

Second, we argue that our results suggest the importance of anti-liter­alism in assessing ordinary meaning. Our study reveals that ordinary peo­ple often interpret rules nonliterally. This bears on recent debates at the heart of textualist theory. 58 58 See infra section IV.B.1 (discussing literal interpretations). ... Close Our findings support rejecting ordinary mean­ing as being synonymous with literal meaning. Specifically, several of the canons implicitly applied by ordinary people result in nonliteral meanings. 59 59 See infra section IV.B.2 (discussing examples including gender canons, number canons, ejusdem generis , and noscitur a sociis ). ... Close Perhaps most importantly, such a commitment to nonliteralism challenges modern textualist practices and may have the salutary effect of decreasing judicial reliance on dictionary definitions and increasing judicial sensitivity to context.

Third, we argue that interpretive canons should be understood as an open set , despite conventional assumptions that the traditional canons cap­ture all relevant language generalizations. Our study provides evidence in support of two new ordinary meaning canons—ones not traditionally rec­ognized by law, but that can be justified on the basis of ordinary meaning. One we term the “nonbinary gender canon.” 60 60 This canon holds that masculine and plural pronouns like “he/his” and “they” also include the feminine (e.g., “her”) and nonbinary (e.g., “they”). See infra section II.B.1. ... Close The other we term the “quantifier domain restriction canon.” 61 61 This canon holds that the scope of quantifiers (e.g., “any”) is typically implicitly restricted by context, which is a linguistic fact the Supreme Court has long struggled to recognize. See infra section II.C.4. ... Close Courts committed to ordinary meaning have no less reason to rely on newly discovered canons than tra­ditional ones assumed to reflect ordinary meaning. More broadly, this the­ory of ordinary meaning canons as an “open set” invites empirical discov­ery of new language canons, allowing a much more dynamic statutory interpretation based on linguistic dynamism. This dynamism is not only consistent with textualists’ ordinary meaning commitments; it is justi­fied by them. 62 62 See infra section IV.C. ... Close

We conclude by arguing for a new empirical research agenda in law and language. This project is ambitious and forward-looking, testing fun­damental empirical assumptions underpinning interpretive canons, dis­covering entirely new canons, reconceptualizing the ordinary meaning doctrine as one concerned with rules, proposing an anti-literalist view of some interpretive canons, and articulating a program for future research. We see our study as a first step in this new direction. We hope future stud­ies uncover further evidence about the triggering conditions of certain canons, discover additional “hidden” ordinary meaning canons, and test how canons are cancelled or whether they are applied consistently.

Statutory Interpretation

Deplatforming.

This Article offers a history and theory of the law of deplatforming across networks, platforms, and utilities. It shows that the tension between service and exclusion is endemic to common carriers, utilities, and other infrastructural services, including technology platforms, and that the American …

Statutory Structure

Interpreting ambiguous statutory provisions in light of the “structure,” “scheme,” or “plan” of the statute is a popular, yet understudied, interpretive tool often deployed by the Supreme Court. This Note categorizes the various types of structural arguments the Court has used and evaluates their me…

Reading the ACA’s Findings: Textualism, Severability and the ACA’s Return to the Court

Challengers are using false textualism to implode the ACA. They argue that a findings section is an “inseverability clause,” ignoring the text and location; the language is boilerplate not for severability but for the commerce power; and Congress’s actual inseverability clauses are unmistakably expl…

Law Within Congress

What law governs Congress? This Article explores the importance of parliamentary precedent as a body of law and the House and Senate parliamentarians who make and enforce that law. Understanding this legal system sheds light on how Congress operates and on topics in public law more broadly.

Fidelity and Construction

Lawrence Lessig’s Fidelity & Constraint: How the Supreme Court Has Read the American Constitution makes an important contribution to “New Originalism.” This Review explores how Lessig’s theory of fidelity to role can inform an originalist understanding of constitutional construction.

The Past, Present, and Future of Section 1115: Learning from History to Improve the Medicaid-Waiver Regime Today

This Essay argues that section 1115 waivers in the Medicaid program have increasingly bee misused, opening the door to ideologically motivated cuts or preconditions on coverage, and suggests a response. 

Judging Ordinary Meaning

When we speak of ordinary meaning we are asking an empirical question—about the sense of a word or phrase that is most likely implicated in a given linguistic context. Linguists have developed computer-aided means of answering such questions. This Article proposes to import those methods into statut…

Uncovering the Codifier’s Canon: How Codification Informs Interpretation

The orthodox view is that statutory captions and titles should not inform interpretation. However, a more nuanced method distinguishes between Congress’s codification choices and those that the Office of the Law Revision Council makes. While the latter are rightly disregarded, judges should use the …

Title VII’s Statutory History and the Sex Discrimination Argument for LGBT Workplace Protections

In light of  Hively ,  Evans , and  Zarda , this Feature argues that Title VII’s bar to discrimination “because of sex” applies to LGBT individuals. This interpretation follows from Title VII's ordinary meaning, particularly in light of its purpose to entrench a merit-based workplace, in addition to its s…

State Legislative Drafting Manuals and Statutory Interpretation

Although legislation has become a central feature of our legal system, relatively little is known about how statutes are drafted, particularly at the state level. This Note addresses this gap by surveying drafting manuals used by bill drafters in state legislatures. These manua…

A Resurgence of Secret Law

This much should be uncontroversial: the public should have access to the law and to the government’s interpretations of it. This principle is an imperative not just of due process but also of republican governance. The Freedom of Information Act (FOIA), which the Eighty-ninth Congress enacted half …

How To Trim a Christmas Tree: Beyond Severability and Inseverability for Omnibus Statutes

This Note advocates a new approach to determining the severability of long, complex omnibus statutes. It first examines the legal basis for the Supreme Court’s current approach to severability, outlined in the three severability principles of Alaska Airlines, Inc. v. Brock. The …

Googling for Meaning: Statutory Interpretation in the Digital Age

Dictionary use has become a common practice in modern statutory interpretation at the Supreme Court.1 With the rise of the “new textualism,”2 Justices increasingly rely on dictionaries to shed light on the plain meaning of statutes—that is, the understanding that an ordinary Engli…

Statutory Ambiguity in King v. Burwell : Time for a Categorical Chevron Rule

Introduction The fate of the Affordable Care Act1 (ACA) may turn on the precise meaning of five words tucked into 26 U.S.C. § 36B(b)(2)(A), a once-obscure provision of the law under which tax subsidies are available for “qualified health plans . . . which were enrolled in through an exc…

Brown , Not Loving : Obergefell and the Unfinished Business of Formal Equality

Introduction Nearly fifty years ago, in the 1967 case Loving v. Virginia, the Supreme Court struck down bans on interracial marriage.1 This Term, the Court seems poised to further expand marriage equality by holding that same-sex couples, too, are guaranteed the constitutional right to mar…

How To Think About Law as Morality: A Comment on Greenberg and Hershovitz

Introduction In philosophy, we can sometimes hope to make progress just by looking at old issues in new ways. The hope is that we might see familiar facts and controversies differently and understand them better for it. In their recent Essays, Mark Greenberg and Scott Hershovitz make the …

Claim Construction or Statutory Construction?: A Response to Chiang & Solum

Introduction “Claim construction” is the process by which a court determines the meaning of a patent’s claims—a process that in turn determines the scope of the covered invention. This process is extremely important because a court must determine what the patent covers before it ca…

Ritchie v. Rupe and the Future of Shareholder Oppression

In 1988, the Texas Court of Appeals held in Davis v. Sheerin that minority shareholders in close corporations are entitled to a buy-out of their shares if they are “oppressed” by the majority shareholders.1 Davis synthesized other states’ case law in order to arrive at a two-part test …

Questioning the Use of Structure To Interpret Statutory Intent: A Critique of Utility Air Regulatory Group v. EPA

In late 2009 and early 2010, the Environmental Protection Agency promulgated a series of final agency actions that operate together to regulate greenhouse gas (GHG) emissions under the Clean Air Act (CAA). Under some CAA programs, sources of pollution are required to obtain permits based on …

Hobby Lobby and the Dictionary Act

Before the end of this month, the Supreme Court will decide Burwell v. Hobby Lobby Stores, Inc.1 and in so doing will determine whether the Religious Freedom and Restoration Act (RFRA) exempts from the Affordable Care Act’s (ACA) contraception mandate closely held, for-profit companies wh…

Uniformity and Integrity in Immigration Law: Lessons from the Decisions of Justice (and Judge) Sotomayor

Though courts and scholars emphasize the importance of uniformity in the interpretation and application of federal immigration law, systemic complexity makes its achievement elusive. In the immigration opinions she has drafted to date on the Supreme Court, as well as in her extensive work reviewing …

Section 5 as Simulacrum

Professor Justin Levitt discusses the Shelby County challenge to section 5 of the Voting Rights Act, noting downsides to the Act’s tremendous symbolic importance. In particular, he finds that the case seems to hinge on a simulacrum of the statute—like an editorial cartoonist’s rendering of a politic…

A Cure Worse than the Disease?

 The pending challenge to section 5 of the Voting Rights Act insists the statute is no longer necessary. Should the Supreme Court agree, its ruling is likely to reflect the belief that section 5 is not only obsolete but that its requirements do more harm today than the condition it was crafted to ad…

Interpretation Step Zero: A Limit on Methodology as “Law”

122 Yale L.J. 2055 (2013).

A Decision Theory of Statutory Interpretation: Legislative History by the Rules

122 Yale L.J. 70 (2012).

We have a law of civil procedure, criminal procedure, and administrative procedure, but we have no law of legislative procedure. This failure has serious consequences in the field of statutory interpretation. Using simple rules garnered from Congress itself, this Article ar…

Intersystemic Statutory Interpretation in Transnational Litigation

122 Yale L.J. 303 (2012).

“Early-Bird Special” Indeed!: Why the Tax Anti-Injunction Act Permits the Present Challenges to the Minimum Coverage Provision

In view of the billions of dollars and enormous effort that might otherwise be wasted, the public interest will be best served if the Supreme Court of the United States reaches the merits of the present challenges to the Patient Protection and Affordable Care Act (ACA) during its October 2011 Term. …

Intrastatutory Federalism and Statutory Interpretation: State Implementation of Federal Law in Health Reform and Beyond

121 Yale L.J. 534 (2011).

State implementation of federal law is commonplace, but has been largely ignored by the interpretive doctrines of legislation and administrative law.  We have no Chevron , federalism canon, or anything else for state implementation, nor any doctrines that ask how Congress’s…

Intersystemic Statutory Interpretation: Methodology as “Law” and the Erie Doctrine

120  Yale L.J.  1898 (2011). 

Do the Erie Doctrine and its “reverse-Erie” mirror require state and federal courts to apply one another’s statutory interpretation methodologies when they interpret one another’s statutes? Surprisingly, the courts have no consistent answer to this question—even though s…

Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform

The Supreme Court may be headed for its most dramatic intervention in American politics—and most flagrant abuse of its power—since Bush v. Gore . Challenges to President Obama’s health care law have started to work their way toward the Court and have been sustained by two Republican-appointed distric…

Superstatutory Entrenchment: A Positive and Normative Interrogatory

William Eskridge, Jr., and John Ferejohn’s magnum opus on “small ‘c’” constitutionalism and the republic of statutes is an unusually wide-ranging work of legal and political analysis, one that defies comprehensive summary. In this Essay, we bore in on a central element of their thesis: the…

Comprehensive Immigration Reform and the Dynamics of Statutory Entrenchment

In his 2008 campaign, then-Democratic presidential candidate Barack Obama promised “comprehensive immigration reform.” Two years into his Administration, and despite continued efforts to promote reform, there has not even been a vote in Congress on a comprehensive bill. President Obama’s prede…

Introduction to The Yale Law Journal Online Symposium on Eskridge and Ferejohn's A Republic of Statutes: The New American Constitution

A Republic of Statutes: The New American Constitution is a landmark collaboration of two preeminent scholars, law professor William N. Eskridge, Jr. and political scientist John Ferejohn. Nearly a quarter century ago, Professor Eskridge, with the late Professor Philip Frickey, sparked the revival of…

Interpreting by the Book: Legislative Drafting Manuals and Statutory Interpretation

120 Yale L.J. 185 (2010). 

The Costs of Consensus in Statutory Construction

Finding methodological consensus for statutory interpretation cases is all the rage these days. Some in the academy sing the praises of a singular judicial approach to questions of statutory interpretation and bemoan the frustrations associated with judges implementing a mélange of interpretive tec…

The States as Laboratories of Statutory Interpretation: Methodological Consensus and the New Modified Textualism

119 Yale L.J. 1750 (2010). 

This Article offers the first close study of statutory interpretation in several state courts of last resort. While academics have spent the past decade speculating about the “death of textualism,” the utility of legislated rules of interpretation, and the capacity of ju…

Accountability, Deference, and the Skidmore Doctrine

119 Yale L.J. 2096 (2010). 

This Note argues that government agencies should receive substantial deference when they interpret statutes informally under the standard of Skidmore v. Swift & Co. A key reason why courts defer to agencies is that agencies are more politically accountable than courts. C…

Regulating in the Shadow of the U.C.C.: How Courts Should Interpret State Consumer Protection Laws

119 Yale L.J. 1329 (2010). 

A Brief Defense of the Written Description Requirement

The Federal Circuit’s December 7, 2009 hearing of oral argument in Ariad v. Lilly has generated significant interest among those who follow patent policy. An en banc decision is expected within the next few months. The dispute arises from the interpretation of 35 U.S.C. § 112, which states in …

Constitutional Avoidance Step Zero

119 Yale L.J. 837 (2010). 

A Case for Varying Interpretive Deference at the State Level

119 Yale L.J. 373 (2009). 

The Mess of Manifest Disregard

A circuit split is in the making, and it could signal a shift with significant implications for federal arbitration law. Just eighteen months after the U.S. Supreme Court’s March 25, 2008 decision in the controversial case of Hall Street Associates v. Mattel, Inc., three circuits are already in ri…

The Continuing Viability of Medicaid Rights After the Deficit Reduction Act of 2005

In a recent note in The Yale Law Journal, Jon Donenberg argued that (1) program changes in Medicaid ushered in by the Deficit Reduction Act of 2005 (DRA) sub silentio rendered Medicaid’s basic availability provision unenforceable under 42 U.S.C. § 1983, and (2) state fair hearing procedures const…

The Estate Tax Fundamentals of Celebrity and Control

Why Hollywood Does Not Require “Saving” From the Recordkeeping Requirements Imposed by 18 U.S.C. Section 2257

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Congress is currently considering the District of Columbia House Voting Rights Act of 2007 (H.R. 1433), which attempts to address the disenfranchisement of District residents by granting the District representation in the House of Representatives. In a Comment recently published in this Journal, I s…

Six Puerto Rican Congressmen Go to Washington

116 Yale L.J. 1389 (2007)

Read José R. Coleman Tió's Pocket Part Essay adapted from this Comment.

Read John C. Fortier's Response, The Constitution Is Clear: Only States Vote in Congress .

Read Christina Duffy Burnett's Response, Two Puerto Rican Senators Stay Home .

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116 Yale L.J. 1230 (2007)

What deference is due the executive in foreign relations? Given the considerable constitutional authority and institutional virtues of the executive in this realm, some judicial deference is almost certainly appropriate. Indeed, courts currently defer to the executive in a…

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116 Yale L.J. 1116 (2007)

Section 5 of the Voting Rights Act (VRA)—the preclearance provision that is the most potent weapon in the nation’s civil rights arsenal—quietly suffered an unexpected defeat in the aftermath of Hurricane Katrina. The “static benchmarking test” used to administer section 5 …

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Chevron as a Voting Rule

116 Yale L.J. 676 (2007) In Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. , the Supreme Court created a new framework for judicial deference to agency interpretations of law: courts should defer to an agency interpretation unless the relevant statute is clear or the agency interpret…

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116 Yale L.J. 869 (2007)

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116  Yale L.J.  732 (2007)

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116 Yale L.J. 824 (2007) With the nation's treaty obligations proliferating and foreign affairs cases taking up a growing share of the Supreme Court's docket, it is surprising how undertheorized the field of treaty interpretation remains. To fill this void, some have suggested that textualism, which …

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116 Yale L.J. 493 (2006)

The New Line Item Veto Proposal: This Time Its Constitutional (Mostly)

When President Bush asked Congress to enact a line item veto in his 2006 State of the Union Address, it sounded like a story we had heard before, one that didn’t have a happy ending. But it turns out that this proposed sequel differs from the 1996 Line Item Veto Act that the Supreme Court struck d…

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Validation Procedures and the Burden of Ballot Access Regulations

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111 Yale L.J. 1707 (2002) Following the lead of Alexander Bickel's The Least Dangerous Branch: The Supreme Court at the Bar of Politics, legal scholars have been obsessed with the countermajoritarian aspects of judicial review. Much of the literature is normative--how can the dilemma of judicial re…

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111 Yale L.J. 1141 (2002) For a brief historical moment, a shadow overhung constitutional law--the shadow of Bush v. Gore. Many people consider the five-Justice majority opinion in that case to have been, legally speaking, a kind of joke. Obviously, those who hold this view wonder whether that case …

Stopping Above-Cost Predatory Pricing

111 Yale L.J. 941 (2002) This Essay has refocused the predatory pricing debate on ex ante incentives--i.e., the incentives for entry and limit pricing before the predatory period--instead of the traditional focus of high prices after the predatory period. Ideally, a monopoly incumbent should price re…

Pennhurst, Chevron, and the Spending Power

110 Yale L.J. 1187 (2001) Narrowly construed, Pennhurst is a sensible (even if not necessary) process-based limitation on Congress's power to bind states to costly burdens. If read to mean that a state can never be bound by a grant condition when the statute itself does not unmistakably speak to a pa…

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Once in Doubt

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Disaggregating Constitutional Torts

110 Yale L.J. 259 (2000) This Essay has attempted to clarify and reconceptualize constitutional tort law. Current doctrine severs remedies from rights and authorizes money damages on terms that apply indifferently to all constitutional violations. This remedial uniformity is faithful to the Monroe mo…

Announcing the Editors of Volume 134

Announcing the first-year editors of volume 133, announcing the seventh annual student essay competition, featured content, lock them™ up: holding transnational corporate human-rights abusers accountable, administrative law at a turning point, law and movements: clinical perspectives.

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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. COUNSEL: 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 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. 4

PLANNED PARENTHOOD V. KRISTIN MAYES/HAZELRIGG Opinion of the Court 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 5

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. 6

PLANNED PARENTHOOD V. KRISTIN MAYES/HAZELRIGG Opinion of the Court ¶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 8

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 9

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. 120 that." 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 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 4 Planned Parenthood further contends that § 36-2322 should be read to exempt “medical emergency” situations from the gestational age 10

PLANNED PARENTHOOD v. KRISTIN MAYES/HAZELRIGG Opinion of the Court ¶21 Planned Parenthood is correct that if it were a standalone statute, by its plain terms, § 36-2322's proscription on elective abortion after fifteen weeks' gestation logically implies that abortion is otherwise permissible. But its interpretation that the purpose and effect of "except" and “unless” is to statutorily authorize certain abortions is not the only reasonable one. Reasonable minds could differ about whether “except” and "unless" independently statutorily authorize conduct not proscribed or, alternatively, merely qualify the circumstances under which a physician may be penalized under § 36-2322 (in other words, that a physician may not be penalized under § 36-2322 when the “except” and “unless” provisions apply).5 This textual ambiguity—one interpretation which concludes that § 36-2322 independently authorizes conduct not proscribed, thus repealing § 13-3603, and the other which posits that § 36-2322 simply qualifies the circumstances under which a physician may be penalized, thus leaving § 13-3603 undisturbed - generates two possible conclusions about § 36-2322's effect on § 13-3603. ¶22 Section 36-2322's text in isolation, therefore, does not resolve the fundamental issue before us: whether the statute creates independent statutory authority for abortion intended to repeal or restrict § 13-3603 or merely acknowledges the existence of a contemporaneous federal constitutional right to abortion under Roe at the time of its passage. Notably, § 36-2322's text does not address its effect on § 13-3603. Given the competing plausible textual readings of § 36-2322, which create ambiguity concerning the statute's effect on § 13-3603, any interpretation of the statute that ignores or minimizes the impact of Dobbs' disavowal of a federal constitutional abortion right runs headlong into the construction provision of Senate Bill 1164 ("S.B. 1164")-the genesis of § 36-2322 and part of what requirement and to criminalize abortions after fifteen weeks. This interpretation is reasonable, but we do not address it further because it has no bearing on whether the statute creates an independent statutory authorization for physicians to perform elective abortions before fifteen weeks' gestation that overrides § 13-3603, which is the issue before us. 5 Penalties for violating § 36-2322 include a criminal class 6 felony conviction and medical license suspension or revocation. See A.R.S. §§ 36-2324(A), -2325(A).

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. 123 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. 124 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 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. 125 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 12

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 . . . .”). 126 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. 127 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 13

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. 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. 6 S.B. 1164's ban on elective abortion after fifteen weeks' gestation was the most temporally restrictive abortion statute. This construction provision conceivably may also apply to other non-temporal statutory abortion restriction statutes. See, e.g., A.R.S. § 36-2152(A) (requiring parental consent or judicial authorization for abortions on minors); A.R.S. § 13-3603.02(A)(1) (prohibiting physicians from performing an abortion when a physician knows the purpose is based on genetic abnormality or race or gender). 14

PLANNED PARENTHOOD V. KRISTIN MAYES/HAZELRIGG Opinion of the Court 130 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. 131 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. 132 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." 15

PLANNED PARENTHOOD V. KRISTIN MAYES/HAZELRIGG Opinion of the Court 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. 134 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. 135 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. 16

PLANNED PARENTHOOD V. KRISTIN MAYES/HAZELRIGG Opinion of the Court 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. 137 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 17

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 8

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)). 143 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. 145 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. 146 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 20

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. 147 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. ¶48 B. 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. 149 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 21

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)). 150 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 22

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. 153 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). 23

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. 154 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. 155 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, 24

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. 157 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. 158 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 25

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. 159 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. 26

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. 27

PLANNED PARENTHOOD v. KRISTIN MAYES/HAZELRIGG Opinion of the Court CONCLUSION 163 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. 28

PLANNED PARENTHOOD v. KRISTIN MAYES/HAZELRIGG VICE CHIEF JUSTICE TIMMER, joined by CHIEF JUSTICE BRUTINEL, Dissenting TIMMER, VCJ., joined by BRUTINEL, CJ., dissenting: ¶65 Whether women have a federal constitutional right to terminate a pregnancy before fetal viability has been a hotly debated and extraordinarily divisive issue in Arizona and, indeed, in our entire country. Yet, after the Supreme Court ended the debate in June 2022 by issuing Dobbs v. Jackson Women's Health Organization, 597 U.S. 215, 231–32 (2022), to overrule Roe v. Wade, 410 U.S. 113 (1973), the Arizona Legislature stood pat. During its 2023 session, the legislature did not (1) repeal A.R.S. § 36-2322(B), which exempts physicians from prosecution if they perform abortions when a fetus has a gestational age less than fifteen weeks or if the pregnant woman would otherwise suffer substantial and irreversible health consequences; (2) repeal or curtail other abortion-regulating statutes in Title 36; or (3) clarify the impact of A.R.S. § 13-3603, the near-total abortion ban that lay dormant since Roe issued in 1973, on multiple modern-era statutes. Instead, the legislature purposely chose to leave all these statutes fully intact and simultaneously operational. ¶66 Nevertheless, relying on a statutory construction note tucked within a session law predating Dobbs, the majority interprets § 36-2322(B) as providing that if Roe was overruled, the state would turn back the clock to 1973 by enforcing the near-total abortion ban against physicians, even if they comply with § 36-2322(B) by performing elective abortions before the fifteen-week gestation point or performing abortions when necessary to prevent serious impairment to the pregnant woman's health. I strongly disagree. As the adage goes, the legislature does not ordinarily "hide elephants in mouseholes." See Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 468 (2001); Estate of Braden ex rel. Gabaldon v. State, 228 Ariz. 323, 330 ¶30 (2011) (Bales, J., dissenting). And the legislature neither did so nor could do so here with a session law note existing wholly apart from statutory text. Sections 13-3603 and 36-2322(B) can and should be interpreted harmoniously to permit their joint enforcement until the legislature or the people, through the initiative process, say otherwise. This means physicians should be permitted to lawfully perform abortions before the fifteen-week gestation point or when necessary to preserve the pregnant woman's health. (Notably, both laws would remain subject to challenge 29

PLANNED PARENTHOOD v. KRISTIN MAYES/HAZELRIGG VICE CHIEF JUSTICE TIMMER, joined by CHIEF JUSTICE BRUTINEL, Dissenting under Arizona's constitution. That challenge is not at issue here.) Respectfully, I dissent. A. Both A.R.S. § 13-3603 And A.R.S. § 36-2322(B) Are Clear And Unambiguous, Making Judicial Interpretation Unnecessary And Inappropriate. Section 13-3603, the near-total abortion ban enjoined as unconstitutional by the court of appeals in 1973 after Roe, has remained essentially unchanged since 1865: ¶67 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. (Emphasis added); see also Howell Code, ch. 10, § 45 (1865). Section 13-3603 is unambiguous, and no one suggests otherwise. Any person who performs an abortion or assists in one must be imprisoned for at least two years and not more than five years. The statute uses the above-italicized conditional clause to identify the only exception to the total ban: when “it is necessary to save [the pregnant woman's] life." Otherwise, the prohibition applies regardless of the pregnancy's duration, whether it resulted from rape or incest, and even if a physician concludes that continuing the pregnancy would substantially and irreversibly impair the woman's health. 168 Since 2000, A.R.S. § 36-2301.01(A)(1) has prohibited physicians from "knowingly perform[ing] an abortion of a viable fetus" unless "necessary to preserve the life or health of the [pregnant] woman.” See 2000 Ariz. Sess. Laws ch. 365, § 2 (2d Reg. Sess.). In 2022, the legislature enacted § 36-2322(B) to further restrict when a physician may perform an abortion. See 2022 Ariz. Sess. Laws ch. 105, § 1 (2d Reg. Sess.) (leaving § 36-2301.01(A) in place and operational). At that time, the Supreme Court was still considering Dobbs, which concerned the constitutionality of 30

PLANNED PARENTHOOD v. KRISTIN MAYES/HAZELRIGG VICE CHIEF JUSTICE TIMMER, joined by CHIEF JUSTICE BRUTINEL, Dissenting Mississippi's "Gestational Age Act" (an act containing a statute nearly identical to § 36-2322). Section 36-2322(B) went into effect three months after the opinion in Dobbs issued and provides as follows: "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."⁹ (Emphasis added.) A physician who violates § 36-2322(B) is guilty of a class 6 felony, which is punishable by up to two years' imprisonment, and the state will suspend or revoke the physician's license to practice medicine. See A.R.S. §§ 36-2324(A), -2325(A); 13-702(D). ¶69 I disagree with the majority that § 36-2322(B) is ambiguous. See supra ¶¶21-22. That statute has only one reasonable meaning, and we should apply it. See Glazer v. State, 237 Ariz. 160, 163 ¶ 12 (2015). We start with the statute's text "because it is the most reliable indicator of a statute's meaning." State v. Holle, 240 Ariz. 300, 302 ¶ 11 (2016). If the legislature's intent is "readily discernable from the face of the statute," we do not resort to other methods of statutory interpretation, like examining a statute’s context, history, or purpose. See id.; Franklin v. CSAA Gen. Ins. Co., 255 Ariz. 409, 411 ¶ 8 (2023). Nor do we attempt to divine and give effect to the legislature's unexpressed intent or look to session laws to manufacture ambiguity where none exists. See Holle, 240 Ariz. at 302 ¶ 11. 170 Like § 13-3603, the territorial-era abortion ban, § 36-2322(B) uses conditional words to precisely identify conduct that is lawful and therefore permissible. Specifically, a physician commits a crime only "if" the physician performs an abortion when the fetus has a gestational age A "medical emergency" occurs when a physician makes a “good faith clinical judgment" that the pregnant woman suffers a medical condition that “necessitate[s] the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function." A.R.S. § 36-2321(7). "Major bodily function[s]" include "functions of the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions." § 36-2321 (6). 31

PLANNED PARENTHOOD v. KRISTIN MAYES/HAZELRIGG VICE CHIEF JUSTICE TIMMER, joined by CHIEF JUSTICE BRUTINEL, Dissenting greater than fifteen weeks "[e]xcept in a medical emergency." § 36-2322(B) (emphasis added). By default, all other physician-performed abortions are permissible and lawful under the provision, assuming the physician complies with other statutes not before us. 10 See A.R.S. § 13-103(A) (“No conduct or omission constitutes an offense... unless it is an offense . . . under this title or under another statute or ordinance.”). The statute has no other reasonable interpretation. ¶71 United States v. Vuitch, 402 U.S. 62 (1971), supports this plain-meaning interpretation. There, the Supreme Court addressed the District of Columbia's indictment of a physician under the district's abortion ban. Id. at 63-64. Similar to Arizona's territorial-era abortion ban, the District of Columbia's ban prohibited abortions on threat of a multi-year prison term "unless the same were done as necessary for the preservation of the mother's life or health.” See id. at 68 (quoting D.C. Code § 22-201 (1901)). The issue was whether the statute was unconstitutionally vague. See id. at 63–64. The Court upheld the statute, reasoning in part that the ban's exception constituted an element of the crime the government must prove rather than an affirmative defense. See id. at 71. In doing so, the Court characterized abortions falling within the life-or-health exception as "legal," and elaborated as follows: The statute does not outlaw all abortions, but only those which are not performed under the direction of a competent, 10 Even when a physician complies with § 36-2322(B), the physician nevertheless commits a crime if he performs an abortion on a minor without receiving parental consent or judicial authorization. See A.R.S. § 36-2152(A). The physician also commits a crime by performing an abortion while knowing the woman is seeking to avoid having a baby with a genetic abnormality or of a particular race or gender. See A.R.S. § 13-3603.02(A)(1). The federal district court preliminarily enjoined § 13-3603.02(A)(1) as it concerns genetic abnormalities because the provision is likely unconstitutionally vague and imposed an undue burden on a woman's - now abrogated — federal constitutional right to terminate a pre-viability pregnancy. See Isaacson v. Brnovich, 563 F. Supp. 3d 1024, 1047 (D. Ariz. 2021). 32

PLANNED PARENTHOOD v. KRISTIN MAYES/HAZELRIGG VICE CHIEF JUSTICE TIMMER, joined by CHIEF JUSTICE BRUTINEL, Dissenting licensed physician, and those not necessary to preserve the mother's life or health . . . . When Congress passed the District of Columbia abortion law in 1901 and amended it in 1953, it expressly authorized physicians to perform such abortions as are necessary to preserve the mother's "life or health.” See id. at 69-70. Like the District of Columbia's ban, § 36-2322(B) clearly permits physicians to lawfully perform abortions that are not expressly outlawed. ¶72 The majority agrees that this is the logical, plain reading of § 36-2322. See supra ¶ 21. Nevertheless, because the statute does not explain how it operates alongside § 13-3603, the majority finds that § 36-2322(B)'s conditional language can also be reasonably interpreted as “merely acknowledg[ing] the existence of a contemporaneous federal constitutional right to abortion under Roe," which forced the legislature to “qualify the circumstances under which a physician may be penalized." See supra ¶¶21-22, 55. Finding the statute therefore ambiguous, the majority then examines secondary principles—including, most prominently, the construction note in the session law that enacted § 36-2322 and other statutes. See supra ¶¶ 23–31. ¶73 In my view, the majority errs by finding § 36-2322(B) ambiguous and then using the construction note to interpret the statute in a way unsupported by its plain textual meaning. First, nothing in the statutory text even hints that § 36-2322(B)'s identification of legal, and therefore permissible, abortions depends on Roe's continuing enforceability. And no language suggests that any aspect of § 36-2322(B) would become inoperative if the Supreme Court overruled Roe. ¶74 Second, § 36-2322's failure to explain its effect on § 13-3603 does not cloud the plain meaning of § 36-2322(B)'s enacted text. The authorities cited by the majority do not support that a statute's silence about its impact on the operation of a different statute creates an ambiguity in textual meaning. See S. Ariz. Home Builders Ass'n v. Town of Marana, 254 Ariz. 281, 286 ¶ 31 (2023); Stambaugh v. Killian, 242 Ariz. 508, 509 ¶ 7 (2017); State v. Sweet, 143 Ariz. 266, 269-70 (1985). Notably, the majority does not 33

PLANNED PARENTHOOD v. KRISTIN MAYES/HAZELRIGG VICE CHIEF JUSTICE TIMMER, joined by CHIEF JUSTICE BRUTINEL, Dissenting identify any unclear language in § 36-2322(B) resulting from its silence concerning § 13-3603. There simply is no "textual ambiguity," as the majority claims. See supra ¶21. Section 36-2322(B) has a single, plain meaning that is not made ambiguous by § 13-3603's existence or by the existence of other statutes outlawing abortions in defined circumstances. See Part I, D¶ 99. The conflict between the statutes only comes into play in deciding whether one repeals the other or whether they can be harmonized. See Part I, C-D ¶¶85-91. It does not transform § 36-2322(B)'s plain language into ambiguous text that needs further interpretation. 175 Third, § 36-2322(B)'s conditional language cannot logically reflect a forced accommodation to Roe, as the majority concludes, because Roe would not have tolerated the after-fifteen-week ban. Roe held that women have a due process right to terminate a pregnancy before the fetus becomes viable and to obtain that abortion without the government's undue interference. See Roe, 410 U.S. at 164; see also Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846, 873, 876–77 (1992) (reaffirming Roe's central holding but replacing its rigid trimester framework with an "undue burden" test to determine whether abortion regulations are permissible). Viability at the time Roe was decided was around twenty-eight weeks, and in 2022 was suggested to be twenty-three or twenty-four weeks. See Dobbs, 597 U.S. at 276. Also, the Supreme Court stressed after Roe that determining precisely when viability is reached must be left to the attending physician in each case, and neither a legislature nor a court could establish viability in terms of gestational weeks or other factors. See Colautti v. Franklin, 439 U.S. 379, 388–89 (1979), abrogated by Dobbs, 597 U.S. 215. For that reason- -as the legislature undoubtedly knew when it enacted § 36-2322(B) — the Ninth Circuit Court of Appeals invalidated A.R.S. § 36-2159, which banned elective abortions after twenty weeks.¹¹ See Isaacson v. Horne, 716 F.3d 1213, 1225-26 (9th Cir. 2013). But for Dobbs, the more-restrictive after-fifteen-week ban would undoubtedly have met the same fate. In short, Roe did not force the legislature to allow abortions up to the fifteen-week gestation point. - 11 Nevertheless, as with § 13-3603, the legislature has never repealed § 36-2159. 34

PLANNED PARENTHOOD v. KRISTIN MAYES/HAZELRIGG VICE CHIEF JUSTICE TIMMER, joined by CHIEF JUSTICE BRUTINEL, Dissenting 176 Fourth, the majority's focus on whether § 36-2322(B) grants an affirmative right to an abortion akin to Roe's recognition of a constitutional right is misplaced. See supra ¶ 22 ("Section 36-2322's text in isolation, therefore, does not resolve the fundamental issue before us: whether the statute creates independent statutory authority for abortion intended to repeal or restrict § 13-3603 . . . .”); ¶ 23 (“To determine if Title 36 creates a right to abortion, or otherwise provides independent statutory authority to perform the procedure... we must consider S.B. 1164's construction provision."); ¶ 42 (concluding "the legislature did not intend to create a privilege secured by law to obtain or perform an abortion” by enacting § 36-2322(B)). Section 36-2322(B) proscribes abortions performed by physicians under particular circumstances. As previously explained, see Part I, A ¶¶ 70–71, § 36-2322(B) provides that all other abortions performed by physicians are necessarily lawful and permitted under the criminal law because they are not proscribed. See § 13-103(A). Proscribing conduct does not require the legislature to grant people an affirmative right to engage in conduct falling outside the proscription, and the majority does not cite any authority suggesting otherwise. Notably, two years before Roe and without considering whether women had a right to a pre-viability abortion, the Supreme Court in Vuitch interpreted the District of Columbia's abortion ban as providing that abortions falling within the life-or-health exception are permitted and lawful. Likewise, at a time when women lacked a federal constitutional or statutory right to an abortion, the legislature enacted what is now § 13-3603, which permits women to obtain abortions to save their lives. Doing so did not grant women a statutory right to an abortion under those circumstances. ¶77 An example raised at oral argument illustrates the point. I can legally drive thirty-five miles per hour when the speed limit is forty-five miles per hour. But the law establishing the speed limit does not grant me an affirmative right to drive thirty-five miles per hour; I simply will not be ticketed for doing so. Likewise, under § 36-2322(B), women do not need an affirmative right to terminate a pregnancy for a physician to perform an abortion either before the fifteen-week gestation point or to prevent the pregnant woman from suffering serious health conditions; the physician simply will not be prosecuted for doing so. 35

PLANNED PARENTHOOD v. KRISTIN MAYES/HAZELRIGG VICE CHIEF JUSTICE TIMMER, joined by CHIEF JUSTICE BRUTINEL, Dissenting 178 Too, the legislature does not affirmatively grant a right by decriminalizing conduct. For example, in 2021, the legislature repealed A.R.S. § 13-3604, which had provided that a woman who has an abortion that is not necessary to save her life shall be imprisoned from one to five years. See 2021 Ariz. Sess. Laws ch. 286, § 3 (1st Reg. Sess.). And when enacting § 36-2322, the legislature provided that the “pregnant woman on whom an abortion is performed, induced or attempted in violation of § 36-2322 may not be prosecuted for conspiracy” to violate the statute. § 36-2324(B). By affirmatively declining to hold women criminally responsible for seeking or obtaining an abortion, the legislature did not grant women a right to seek an abortion; it simply decided the state would not prosecute women for doing so. The majority misses the mark by asking and then answering whether § 36-2322(B) grants a limited right to abortion. ¶79 Fifth, the majority incorrectly elevates the construction note in § 36-2322(B)'s session law to equal its text. Instead of using the note as a tool in interpreting any ambiguous language in the statutory text, the majority incorrectly uses the note to create an ambiguity in the text. See supra ¶ 22 ("[A]ny interpretation of the statute that ignores or minimizes the impact of Dobbs' disavowal of a federal constitutional abortion right runs headlong into the construction provision of Senate Bill 1164 ... the genesis of § 36-2322 and part of what the legislature enacted."); id. ("We must interpret the statute in its proper context" which "requires us to reconcile the legislature's construction provision, which specifically preserves § 13-3603, and the text of § 36-2322 . . . ."); ¶ 24 ("The construction provision is part of the bill that legislators [had] before them and approve[d], and has the same force of law as codified law.”); ¶ 25 (stating the Court must consider the construction note to discern § 36-2322(B)'s meaning "because [the construction note] is part of the bill the legislature approved”). ¶80 The "construction" note, which-despite its title-expresses only legislative intent and provides absolutely no insight on what the legislature meant by any language in the statute, is emphatically not part of the statutory text. See 2022 Ariz. Sess. Laws ch. 105, § 2 (2d Reg. Sess.). We have repeatedly stressed that declarations of legislative intent in an enactment are "devoid of operative effect." See Redgrave v. Ducey, 251 Ariz. 451, 457 ¶ 22 (2021) (concluding that if statutory text conflicts with a

PLANNED PARENTHOOD v. KRISTIN MAYES/HAZELRIGG VICE CHIEF JUSTICE TIMMER, joined by CHIEF JUSTICE BRUTINEL, Dissenting statement of purpose or intent, "the text must prevail"); Cronin v. Sheldon, 195 Ariz. 531, 538 ¶30 (1999) ("The preamble [stating legislative purpose and intent] is devoid of operative effect."); Sakrison v. Pierce, 66 Ariz. 162, 172 (1947) (stating that the policy section of an act would be controlling only "if we were called upon to interpret an operative portion of the statute that was ambiguous or of doubtful meaning" and emphasizing that "the policy of the law is not controlling and can be considered only where the statute is ambiguous” (quoting 59 C.J.S., Statutes, § 602 for the latter quote)). The majority ignores this principle. ¶81 We have also consistently emphasized that if a statute has a plain textual meaning, we simply apply it rather than construe it by examining secondary sources. See, e.g., Mussi v. Hobbs, 255 Ariz. 395, 402 ¶34 (2023) ("It is a basic principle that courts will not read into a statute something which is not within the manifest intention of the legislature as indicated by the statute itself." (emphasis added) (quoting Town of Scottsdale v. State ex. rel. Pickrell, 98 Ariz. 382, 386 (1965))); S. Ariz. Home Builders Ass'n, 254 Ariz. at 286 ¶ 31 ("Statutory interpretation requires us to determine the meaning of the words the legislature chose to use."); City of Mesa v. Killingsworth, 96 Ariz. 290, 294 (1964) (“Where the statute is unambiguous, the courts will only apply the language used and not interpret, for the statute speaks for itself."). We hold the legislature to its enacted statutory text, and the majority therefore errs by using the construction note to vary § 36-2322(B)'s plain language. See Roberts v. State, 253 Ariz. 259, 266 ¶ 20 (2022) (quoting City of Phoenix v. Donofrio, 99 Ariz. 130, 133 (1965)) (stating "courts will not read into a statute something which is not within the manifest intention of the legislature as gathered from the statute itself” (emphasis added)); In re McLauchlan, 252 Ariz. 324, 326 ¶15 (2022) (“Legislative history is not a substitute for clear legislative language . . .”); Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 56-58 (2012) (noting the supremacy of statutory text and explaining that statutory purpose "sheds light only on deciding which of various textually permissible meanings should be adopted"). ¶82 For all these reasons, it is simply implausible to interpret § 36-2322(B)'s conditional language as merely acknowledging Roe's restriction on the state's ability to prohibit pre-viability abortions. The 37

PLANNED PARENTHOOD v. KRISTIN MAYES/HAZELRIGG VICE CHIEF JUSTICE TIMMER, joined by CHIEF JUSTICE BRUTINEL, Dissenting statute says what it means and means what it says: The state will prosecute physicians for performing abortions after the fetus reaches fifteen weeks in age unless a medical emergency requires the procedure. The state will not prosecute physicians for performing abortions before the fetus reaches fifteen weeks in age. These abortions are lawful. There is no room for misunderstanding. ¶83 My colleagues accuse me of "deliberately blind[ing]” myself to legislative history and the legislature's construction note in interpreting § 36-2322(D). See supra ¶ 61. Not so. With eyes wide open, I fulfill the legislature's intent by giving plain meaning to the language actually enacted. I decline to engage in the guesswork needed to engraft onto § 36-2322(B)'s straightforward language a meaning the legislature may or may not have intended had it anticipated the Supreme Court would overrule Roe. ¶84 But what effect does a reinvigorated § 13-3603 have on § 36-2322(B)? The majority does not address whether the statutes can be harmonized, as the court of appeals held. See Planned Parenthood Ariz., Inc. v. Brnovich, 254 Ariz. 401, 405 ¶ 13 (App. 2022). Because it concludes that § 36-2322(B) does not create a legal privilege to obtain or perform an abortion, the majority finds no conflict and thus “[no] need to harmonize” the two statutes. See supra ¶ 42. I disagree, so I turn to that issue. B. Sections 13-3603 And 36-2322(B) Conflict. 185 The conflict between §§ 13-3603 and 36-2322(B) is readily apparent. On the one hand, § 13-3603 criminalizes performing any abortions, unless necessary to save the pregnant woman's life. On the other hand, § 36-2322(B) criminalizes physician-performed abortions only when the physician performs an abortion after the fetus is fifteen weeks of age and a medical emergency does not necessitate the procedure. Consequently, a physician who performs an abortion in compliance with § 36-2322(B) nevertheless violates § 13-3603, unless the abortion was necessary to save the pregnant woman's life. In that situation, the statutes operate inconsistently and therefore conflict. See State v. Jones, 235 Ariz. 501, 503 ¶ 8 (2014); see also Cave Creek Unified Sch. Dist. v. Ducey, 233 Ariz. 1, 7 38

PLANNED PARENTHOOD v. KRISTIN MAYES/HAZELRIGG VICE CHIEF JUSTICE TIMMER, joined by CHIEF JUSTICE BRUTINEL, Dissenting ¶ 24 (2013) (holding that a conflict exists when statutes cannot be read "to give each effect and meaning”). C. Section 36-2322(B) Operates As An Exception To § 13-3603. 186 We have repeatedly stated that courts have a duty to harmonize statutes to rectify conflicts, as far as possible, and avoid construing one statute as impliedly repealing another. See, e.g., State v. Rice, 110 Ariz. 210, 213 (1973); State Land Dep't. v. Tucson Rock & Sand Co., 107 Ariz. 74, 77 (1971); Ard v. State, 102 Ariz. 221, 224 (1967). Reconciling any contradictions "giv[es] force and meaning to all statutes involved." UNUM Life Ins. Co. of Am. v. Craig, 200 Ariz. 327, 333 ¶ 28 (2001). ¶87 The conflict between the statutes here is reconciled by applying the general/specific canon. That canon is not used to discern the meaning of statutory language but instead directs the operation of conflicting provisions. See Guard./Conserv. of Denton, 190 Ariz. 152, 157 (1997). It provides that "[w]hen 'two conflicting statutes cannot operate contemporaneously, the more recent, specific statute governs over an older, more general statute.”” Jones, 235 Ariz. at 503 ¶ 8 (quoting UNUM Life Ins. Co., 200 Ariz. at 333 ¶ 29); see also State v. Santillanes, 541 P.3d 1150, 1155–56 ¶ 20 (Ariz. 2024) (recognizing the canon); Scalia & Garner 183 (“If there is a conflict between a general provision and a specific provision, the specific provision prevails.”). ¶88 As the more specific and recent statute, § 36-2322(B) applies in circumstances governed by it. See Jones, 235 Ariz. at 503 ¶¶ 8, 11; Guard./Conserv. of Denton, 190 Ariz. at 157; Lemons v. Superior Court, 141 Ariz. 502, 505 (1984). Because § 13-3603 is the more general statute, outlawing almost all abortions, § 36-2322(B) operates as an exception to § 13-3603's near-total ban. See State v. Cassius, 110 Ariz. 485, 487 (1974) ("Where a statute first expresses a general intent, and later an inconsistent particular intent, such particular intent will be taken as an exception to the general intent, and both will stand."). ¶89 To be clear, § 36-2322(B) does not repeal any aspect of § 13-3603. See Scalia & Garner 184 ("Note that the general/specific canon 39

PLANNED PARENTHOOD v. KRISTIN MAYES/HAZELRIGG VICE CHIEF JUSTICE TIMMER, joined by CHIEF JUSTICE BRUTINEL, Dissenting does not mean that the existence of a contradictory specific provision voids the general provision. Only its application to cases covered by the specific provision is suspended; it continues to govern all other cases.”). Instead, § 36-2322(B) negates § 13-3603 “only in its application to the situation that [§ 36-2322(B)] covers.' Id. at 185. Contrary to the majority's characterization, see supra ¶ 42, applying § 36-2322(B) as an exception to § 13-3603 does not "repeal" any part of the latter statute. See Cassius, 110 Ariz. at 487 (finding that a later criminal statute operates as an exception to a conflicting general statute, neither statute is repealed, and “each is given full effect"). 11 190 So, if a physician performs an abortion at the thirteen-week gestation point as permitted by § 36-2322(B), the state cannot prosecute the physician under § 13-3603. Section 36-2322(B) operates as an exception, just like § 13-3603's exception for abortions performed to save the pregnant woman's life. But if the physician performs an abortion at the sixteen-week gestation point and without a medical emergency in violation of § 36-2322(B), the state may prosecute the physician under either § 13-3603 or § 36-2322(B). See United States v. Batchelder, 442 U.S. 114, 123–24 (1979) ("[W]hen an act violates more than one criminal statute, the Government may prosecute[] under either so long as it does not discriminate against any class of defendants."); State v. Romero, 130 Ariz. 142, 147 (1981) (concluding "[t]here is no question that the Legislature could proscribe the conduct covered by [two different statutes]” so long as the state did not use an "unjustifiable selection standard"). No exception to prosecution would exist under either statute. And, of course, the state may prosecute any non-physician, including other medical professionals, for performing an abortion in violation of § 13-3603. 191 Resolving the conflict in this way recognizes that each statute is given full effect as parts of a single statutory scheme governing abortions. See Fleming v. State Dep't of Pub. Safety, 237 Ariz. 414, 417 ¶ 12 (2015) ("[W]hen statutes relate to the same subject matter, we construe them together as though they constitute one law . . . ."). It does not matter that the provisions are in different statutory chapters or that § 13-3603 lay largely dormant for decades until reinvigorated by Dobbs. See State ex rel. 40

PLANNED PARENTHOOD v. KRISTIN MAYES/HAZELRIGG VICE CHIEF JUSTICE TIMMER, joined by CHIEF JUSTICE BRUTINEL, Dissenting Larson v. Farley, 106 Ariz. 119, 122 (1970). Related statutes "must be construed as one system governed by one spirit and policy.” Id. ¶92 The majority's position neutralizes most of Title 36, which regulates and restricts abortions and abortion clinics, and impliedly repeals the part of § 36-2322(B) permitting physicians to lawfully perform abortions before the fetus is fifteen weeks old or in a medical emergency. But viewing § 36-2322(B) as an exception to § 13-3603, as I do, avoids impliedly repealing any statute and results in a single, cohesive legislative scheme. See Fleming, 237 Ariz. at 417. D. Neither The Construction Note Nor Any Other Law Triggers § 36-2322(B)'s Nullification Upon Roe's Demise and § 13-3603's reanimation. 193 The only way to conclude that § 36-2322(B) is not given full effect as an exception to § 13-3603 is if the legislature had enacted a "trigger clause" abrogating § 36-2322(B) upon Roe's demise. Indisputably, the legislature did not expressly do so. Nevertheless, the majority finds "a discernible comprehensive trigger provision" by considering the legislature's continuing recognition of § 13-3603, the session law's construction note, and A.R.S. § 1-219(A), which states that laws should be interpreted as acknowledging that a fetus has the same rights as all persons. See supra ¶ 40. My colleagues then conclude Dobbs pulled this trigger by "remov[ing] the sole authority for elective abortion in Arizona," thereby abrogating § 36-2322(B). See supra¶¶40, 43. ¶94 Before addressing the majority's reasoning, it is useful to consider what constitutes a trigger clause. Mississippi's abortion scheme provides an example. In 2007, the Mississippi Legislature enacted a law banning all abortions "except in the case where necessary for the preservation of the mother's life or where the pregnancy was caused by rape." Miss. Code Ann. § 41-41-45(2). Roe, of course, would have abrogated that ban. Consequently, the Mississippi Legislature made the law effective ten days after the Mississippi Attorney General publishes a determination that the Supreme Court has overruled Roe and the ban would probably be upheld by that Court as constitutional. See 2007 Miss. Laws ch. 441, §§ 4, 6. 41

PLANNED PARENTHOOD v. KRISTIN MAYES/HAZELRIGG VICE CHIEF JUSTICE TIMMER, joined by CHIEF JUSTICE BRUTINEL, Dissenting Those circumstances would automatically "trigger" the almost total ban on abortion. 195 Mississippi's fifteen-week gestation statute, in turn, has a provision in its text triggering the statute's own demise upon § 41-41-45(2)'´s effective date. Mississippi Code § 41-41-191(8) provides that “[a]n abortion that complies with this section, but violates any other state law, is unlawful." Thus, if Mississippi's near-total abortion ban became effective as certified by the Mississippi Attorney General, abortions previously permitted by § 41-41-191 would become "unlawful" without further legislative action. The Mississippi Legislature explicitly directed what would occur if the Supreme Court overruled Roe as certified by the Mississippi Attorney General: the state's near-total ban would go into effect and abortions complying with the fifteen-week gestation statute would nevertheless become unlawful as violating the new near-total ban. ¶96 Neither § 36-2322(B) nor any other Arizona law has trigger language like § 41-41-191(8)'s clause. The majority characterizes the session law construction note as “virtually identical" to Mississippi's § 41-41-191(8) and asserts either both must have a trigger clause or neither do. See supra ¶ 39. But the majority refuses to recognize and give weight to the crucial, operative language that explicitly triggers § 41-41-191's demise upon its conflict with another statute. See id. Critically, unlike Mississippi's legislature, our legislature opted not to provide that an abortion that complies with § 36-2322(B) “but violates any other state law,” including § 13-3603, makes the abortion "unlawful." And in my view, the construction note, together with § 13-3603's continued existence and § 1-219(A)'s interpretation directive acknowledging fetal rights, cannot be dressed up as a comparable trigger clause. 197 The legislature included § 36-2322(B) within a new article entitled "Gestational Limit on Abortion." See 2022 Ariz. Sess. Laws ch. 105 (2d Reg. Sess.). Nothing in the statutory text even arguably constitutes a trigger clause. The construction note contained within the session law provides: 42

PLANNED PARENTHOOD v. KRISTIN MAYES/HAZELRIGG VICE CHIEF JUSTICE TIMMER, joined by CHIEF JUSTICE BRUTINEL, Dissenting 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.). Nothing in this note conditions § 36-2322(B)'s effectiveness on whether or not the Supreme Court overrules Roe. And it certainly would have been easy to include that condition in a sentence or two if the legislature had intended that result. See Scalia & Garner at 181-82 (highlighting "[t]he familiar 'easy-to-say-so-if-that-is-what-was-meant' rule of statutory interpretation” (quoting Commissioner v. Beck's Estate, 129 F.2d 243, 245 (2d Cir. 1942))). Undoubtedly, the legislature knew how to use trigger clauses because it has explicitly inserted them into other abortion-related session laws. See, e.g., 1999 Ariz. Sess. Laws ch. 311, §§ 12, 13 (1st Reg. Sess.) (calling for the conditional repeal and the conditional enactment of statutory provisions triggered by a court finding that the statutory definition of "abortion clinics” is unconstitutional). And the Arizona Legislature in 2022 followed a drafting manual explaining how to word such provisions. See Ariz. Legis. Bill Drafting Manual § 4.4 at 30-32 (2021-2022) (explaining conditional enactments and repeals and providing sample language not found in § 36-2322 or the construction note); see also A.R.S. § 41-1304(A) (charging a council of legislators with providing bill-drafting services to improve the quality of legislation). ¶98 The majority reaches the opposite conclusion, but I do not find its reasoning persuasive. First, the construction note's statement that the act including § 36-2322(B) does not "[c]reate or recognize" women's right to abortion does not mean revived § 13-3603 serves to make unlawful all abortions that comply with § 36-2322(B). As previously explained, the legislature does not have to affirmatively grant women a right to an abortion to criminalize or not criminalize performing abortions 43

PLANNED PARENTHOOD v. KRISTIN MAYES/HAZELRIGG VICE CHIEF JUSTICE TIMMER, joined by CHIEF JUSTICE BRUTINEL, Dissenting in some situations. See Part I, A ¶¶ 76–78. Thus, the legislature did not affirmatively grant the right by permitting anyone to perform a lawful abortion if necessary to save a pregnant woman's life, see § 13-3603, or by permitting physicians to perform lawful abortions before the fifteen-week gestation point or in a medical emergency, see § 36-2322(B). 199 Second, the note's statement that “[t]he Legislature does not intend this act to make lawful an abortion that is currently unlawful” did not trigger § 36-2322(B)'s abrogation upon Roe's demise. The majority concludes that the only "currently unlawful” abortions are ones proscribed by § 13-3603 because only that provision is more restrictive than § 36-2322(B). See supra 29. Thus, because nearly all abortions under § 13-3603 are unlawful, the majority reasons that abortions performed before the fifteen-week gestation point or in a medical emergency per § 36-2322(B) became "unlawful" when the injunction was lifted on § 13-3603. See supra ¶ 29. 100 The majority's factual premise is incorrect because the legislature included all abortion laws within the “currently unlawful” clause and not just those more restrictive than § 36-2322(B). See 2022 Ariz. Sess. Laws ch. 105, § 2 (2d Reg. Sess.) (“The Legislature does not intend this act to make lawful an abortion that is currently unlawful."). Many statutes other than § 13-3603 criminalize abortions. And unlike § 13-3603, those statutes operated without restriction when the legislature enacted § 36-2322(B), making abortions performed in violation of those provisions "currently unlawful." See A.R.S. § 13-3603.01 (proscribing partial-birth abortions unless necessary to save the life of the pregnant woman); § 36-2152(A) (prohibiting physicians from performing abortions on minors without parental consent or judicial authorization); § 36-2301.01 (prohibiting a physician from "knowingly perform[ing] an abortion of a viable fetus" except in a medical emergency); §13-3603.02(A)(1) (proscribing abortions committed when a physician knows the woman is seeking to avoid having a baby with a genetic abnormality or of a particular race or gender). ¶101 Notably, at the time the legislature enacted § 36-2322(B), abortions up to the fifteen-week gestation point and those performed in a 44

PLANNED PARENTHOOD v. KRISTIN MAYES/HAZELRIGG VICE CHIEF JUSTICE TIMMER, joined by CHIEF JUSTICE BRUTINEL, Dissenting medical emergency were not "currently unlawful" under § 13-3603 because that statute had been enjoined for more than fifty years. It would be downright bizarre for the legislature to have enacted § 36-2322(B) while simultaneously intending to make “unlawful” abortions complying with that statute. ¶102 For all these reasons, it is implausible to conclude the legislature planted within the construction note a bombshell of reverting to a near-total ban on abortion—including those to preserve a woman's health-by using the term “currently unlawful" as referring to abortions made unlawful by a long-enjoined § 13-3603 rather than currently operative statutes making certain abortions unlawful. See Whitman, 531 U.S. at 468; Estate of Braden ex rel. Gabaldon, 228 Ariz. at 330 ¶ 30 (Bales, J., dissenting). If the legislature intended otherwise, it could have easily said so. ¶103 Third, the note's statement that the act including § 36-2322(B) does not repeal § 13-3603 or other provisions "regulating or restricting abortions" does not mean that abortions permitted under § 36-2322(B) become unlawful if Roe is overruled and § 13-3603 is no longer enjoined. As previously explained, § 13-3603 does not have to be repealed for § 36-2322(B) to operate. See Part I, C ¶¶ 86-92. Both statutes can remain fully intact and operate as one cohesive act. And by explicitly keeping other statutes "regulating or restricting abortions" intact, the legislature signaled its intention to maintain a single, cohesive system in which all statutes remain fully operational. Under the majority's view, maintaining other statutes "restricting abortions” would be impossible because § 13-3603's near-total ban would engulf those provisions without exception. ¶104 Fourth, § 1-219(A) provides no authority for concluding that abortions permitted under § 36-2322(B) would become unlawful under § 13-3603 if Roe was overruled. Section 1-219(A) is an interpretation provision and is not substantive. Because no language in the construction note can be interpreted as a trigger clause, § 1-219(A) adds nothing and does not support the majority's position. 1105 In sum, unlike Mississippi's legislature, our legislature did not include a trigger clause in the act containing § 36-2322(B). Any 45

PLANNED PARENTHOOD v. KRISTIN MAYES/HAZELRIGG VICE CHIEF JUSTICE TIMMER, joined by CHIEF JUSTICE BRUTINEL, Dissenting lingering doubt is further removed by considering the legislature's express statement of intent. In it, the legislature makes several findings of fact concerning gestation and the state's legitimate interests in protecting potential new life and the health of a pregnant woman. See 2022 Ariz. Sess. Laws ch. 105, § 3(A) (2d Reg. Sess.). It then affirmatively states what it intends to accomplish: “This Legislature intends through this act and any rules and policies adopted hereunder, to restrict the practice of nontherapeutic or elective abortion to the period up to fifteen weeks of gestation." See 2022 Ariz. Sess. Laws ch. 105, § 3(B) (2d Reg. Sess.). Nothing suggests an intent to make abortions permitted under § 36-2322(B) unlawful upon Roe's demise. CONCLUSION 106 All agree the legislature enacted § 36-2322(B) in hopes the Supreme Court in Dobbs would uphold Mississippi's similar Gestational Age Act. See Governor's Approval Message, 2022 Ariz. Sess. Laws ch. 105 (2d Reg. Sess.) ("This very issue is pending before the United States Supreme Court now in Dobbs v. Jackson Women's Health Organization.”). But the legislature perhaps got more than it expected when Dobbs overruled Roe. Some, most, or even all legislators in 2022 would have included a trigger clause repealing § 36-2322(B) and other Title 36 laws if they foresaw that Roe would be overruled and the injunction on § 13-3603 lifted. But the legislature did not state that intent in any statute or session law, and we should not speculate about what it would have done. Justice Antonin Scalia and Bryan Garner, considered by many to be leading scholars in statutory interpretation, call doing otherwise as following, "[t]he false notion that when a situation is not quite covered by a statute, the court should reconstruct what the legislature would have done had it confronted the issue." Scalia & Garner at 349. They caution that “judicial predictions of how the legislature would have decided issues it did not in fact decide are bound to be little more than wild guesses.” Id. at 350 (quoting Frank H. Easterbrook, Statutes' Domains, 50 U. Chi. L. Rev. 533, 547–48 (1983)). ¶107 What the legislature did express in plain language was a statutory scheme that includes both § 13-3603 and § 36-2322(B). I would therefore apply the latter statute as an exception to the former, leaving both 46

PLANNED PARENTHOOD v. KRISTIN MAYES/HAZELRIGG VICE CHIEF JUSTICE TIMMER, joined by CHIEF JUSTICE BRUTINEL, Dissenting fully intact and operative. This would mean physicians could perform abortions up to the fifteen-week gestation point or to preserve the pregnant woman's health without incurring harsh criminal penalties. If the legislature or the people desire a different result, either could enact a new law. ¶108 The majority's opinion today will undoubtedly be derided by many as result-oriented or a reflection of individual justices' ideology. My dissenting opinion will probably spark similar criticism. That is the cross borne by all judges in controversial social-issue cases like this one. But nothing is further from the truth. In upholding our oaths to follow the laws of this state, we simply disagree - vehemently — about what those laws mean. And in my view, the majority mistakenly returns us to the territorial-era abortion statute last operative in 1973. I would leave it to the people and the legislature to determine Arizona's course in the wake of Roe's demise. With great respect for my colleagues, I dissent. 47