A ruling Thursday from a federal judge that reinstates an abortion ban from 2021 has once again complicated the legal landscape for providers in Arizona.
U.S. District Court Judge Douglas Rayes refused to block a law that prohibits doctors from performing abortions due to the fetus’ genetic abnormality, saying that the overturning of Roe v. Wade nullified that request and no actual harm to providers had yet happened.
Passed by the Republican-majority legislature two years ago and signed by then-Gov. Doug Ducey, the law threatened doctors and others who helped finance an abortion with revoked licenses and criminal penalties if they knew the reason for the abortion was because of a genetic abnormality and it isn’t a medical emergency. Doctors faced a class 6 felony and others who helped finance it could have been charged with a class 3 felony.
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The law was ultimately blocked the same year it was passed under the auspices of the constitutional right to an abortion, but the U.S. Supreme Court overturned that right last year and also allowed the 2021 ban itself to go into effect. Because the genetic abnormality ban included a provision that explicitly stated it didn’t supersede the 1864 near-total ban Arizona was under at the time, its reimplementation then was a moot point.
Over the summer, pro-abortion groups including the National Council of Jewish Women Arizona and local abortion providers sought a renewed injunction to block the genetic abnormality ban again. They argued that the law was unconstitutionally vague and threatened real harm to doctors across the Grand Canyon State.
Civia Tamarkin, president of the National Council of Jewish Women Arizona, told the Arizona Mirror that the argument from then-Attorney General Mark Brnovich, who defended the ban, was insufficient and left doctors open to criminal charges even if a patient didn’t tell them the reason they were seeking an abortion.
“Brnovich’s office basically argued in court: ‘Don’t ask, don’t tell,’” she said. “However, we also have mandatory sonograms in this state. A provider could look at the sonogram, blood tests and other preliminary medical procedures and, obviously, be able to deduce the reason.”
What did the judge say?
Rayes wasn’t convinced. He noted that the harm warned by abortion advocates hasn’t occurred — effectively disqualifying that argument. No provider has yet had the genetic abnormality law used against them, and theoretical harm isn’t something that can be ruled on. A claim brought because a law is vague, he added, is only valid if the law in question trespasses on a constitutional right, and the Dobbs ruling from the high court means that the constitutional right to receive or perform an abortion no longer exists.
“Plaintiffs’ ability to provide (abortion) care without undue state interference is a battle fought and lost in Dobbs,” Rayes wrote.
Another argument that the provisions in the law — dubbed the “Reason Regulations” — chilled the free speech of doctors by preventing them from counseling patients for fear of being found in violation of the ban was also dismissed.
“Nothing in the Reason Regulations penalizes Plaintiffs for their counseling or related speech,” Rayes said. “The Reason Regulations operate only when Plaintiffs take the additional step of performing, or soliciting or accepting money to finance, an abortion knowing that the patient seeks (it) because of the presence or presumed presence of a fetal genetic abnormality…all of which is conduct not speech.”
What does the future look like?
Tamarkin said her group is taking stock of their options, and may explore using a different approach to challenge the ban. She noted that, as a Jewish organization, one path may be to use the Religious Freedom Restoration Act. Judaism supports the termination of a pregnancy if a woman’s well-being is at stake. Tamarkin added that the ban may conflict with the current law of the land, which allows elective abortions up to the 15 week mark.
“Abortion is legal up until 15 weeks — except now (not) for reason of genetic anomalies,” she said. “That’s an inconsistency, and the laws are not harmonious.”
It’s unclear if this argument would work, as the law includes a provision that details it doesn’t repeal any other laws regulating abortion that came before it — a caveat that was the subject of much confusion and litigation as state leaders vied over enforcing it or the 1864 near-total ban.
While current Attorney General Kris Mayes has vowed not to defend any abortion bans her predecessor did, and campaigned on a promise to protect reproductive rights, Tamarkin still worries that future efforts to strike the genetic-abnormality ban from the books could face opposition from other anti-abortion groups.
“If the current attorney general does not defend the state’s (previous) position, I suspect that there will be interested parties who might,” she said.
On Friday, Planned Parenthood of Arizona, which runs four of the state’s nine abortion clinics, announced it intended to present Gov. Katie Hobbs with a list of suggested executive orders the organization would like her to issue. Among them is one to provide civil and criminal legal protections for patients, medical personnel and others who assist with abortion care. Such an order could potentially preempt any consequences from the genetic abnormality ban, if it’s enforced in the future.
The organization’s CEO, Brittany Fonteno, lamented Rayes’ ruling and said access to abortion care should be free of outside interference.
“(This is) a devastating, harmful ban that is designed to keep people from making their own decisions,” she said. “Politicians should never have a hand in creating people’s families. These sacred and personal decisions really should remain between a provider and their patient.”
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