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Lower courts held that the 15-week ban, as the most recently enacted statute, was the operative one. But a four-justice majority on the state supreme court disagreed. “We conclude that [the 2022 law] does not create a right to, or otherwise provide independent statutory authority for, an abortion that repeals or restricts [the 1864 law], but rather is predicated entirely on the existence of a federal constitutional right to an abortion since disclaimed by [Dobbs],” Lopez wrote.

Two of the justices, Ann Timmer and Robert Brutinel, argued that the court should have instead read the later law to clarify the earlier one. The two laws, they wrote, “can and should be interpreted harmoniously to permit their joint enforcement until the legislature or the people, through the initiative process, say otherwise.” They argued that the state legislature could not have intended to “hide elephants in mouseholes,” borrowing a phrase from an unrelated U.S. Supreme Court precedent.

A seventh justice, Justice Bill Montgomery, had recused himself from the case in December after Planned Parenthood’s Arizona chapter found a 2017 Facebook post where he said the group was responsible for the “greatest generational genocide known to man.” The court’s membership expanded from five to seven in 2016 after Arizona Republicans passed a bill to add two new seats, which they promptly filled with two Republican justices.