Judge OKs Arizona ban on abortions for fetal abnormalities

PHOENIX — Women in Arizona no longer have the legal right to an abortion due to a fetal abnormality at any stage of pregnancy, even if Arizona courts eventually conclude any abortion is legal through 15 weeks.

In a new ruling in a lawsuit brought by doctors against a 2021 Arizona law, U.S. District Court Judge Douglas Rayes wrote, “Plaintiffs do not have a constitutional right to perform elective abortions and their patients no longer have the constitutional right to receive them.” The doctors are represented in the case by the Center for Reproductive Rights and the American Civil Liberties Union.

Rayes acknowledged he previously blocked the state from enforcing the 2021 statute, which makes it a Class 6 felony, with a one-year prison term, to terminate a pregnancy if the woman is seeking the procedure because of a fetal genetic defect. It also allows the father of an unborn child who is married to the mother to file suit on behalf of that child for violations of the law, or for a parent of an unmarried minor to take such legal action.

The judge said at the time, in 2021, that the law imposes an undue burden on women, which outweighed any interest the state claimed in promoting the law.

But Rayes now says his ruling was based on the 1973 U.S. Supreme Court decision in Roe v. Wade. It said women have a constitutional right to terminate a pregnancy for any reason, or no reason, prior to the point of fetal viability.

All that, he said, changed in June 2022 when the high court reversed Roe in a decision called Dobbs v. Jackson Women’s Health.

Don’t ask, don’t tell?

There is little chance Arizona’s Republican-controlled Legislature will repeal the law. That makes the only real option for reversing it a planned 2024 initiative to put the right of abortion into the Arizona Constitution, as the Dobbs decision leaves the question to the states.

In the interim, it may mean that doctors and their patients who want such an abortion have to engage in what would amount to “don’t ask, don’t tell.’’

That’s because the law prohibits the procedures when the doctor knows that the “sole reason’’ a woman wants to terminate her pregnancy is because of a fetal genetic defect.

Doctors are required to inform the woman of the law. But as even Republican former Attorney General Mark Brnovich argued two years ago, that does not require that she disclose that information.

Proponents advanced the measure on the basis that it simply extends the protections of the Americans with Disabilities Act to the unborn and therefore did not run afoul of Roe v. Wade.

But Rayes, in his 2021 ruling, slapped the state for making such a claim in this case.

“The mechanism Arizona has chosen is not designed to encourage women to choose childbirth,’’ the judge wrote. “It is designed to thwart them from making any other choice.’’

Rayes said there were several flaws in the statute, focusing on making it a crime for doctors to perform an abortion if the woman’s sole reason is the genetic defect.

“At what point can a doctor be deemed to ‘know’ or ‘believe’ what is in the mind of a patient?’’ Rayes wrote.

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Then, he said, there’s the question of what happens if that defect is just one reason a woman seeks an abortion.

“For example, patients sometimes report that they are terminating a pregnancy because they lack the financial, emotional, family, or community support to raise a child with special and sometimes challenging needs,’’ Rayes continued. “If a doctor accepts money to finance such an abortion ... can that doctor face felony prosecution or a civil lawsuit?’’

Right to elective abortion eliminated

But now, the judge said in a Jan. 19 ruling, the legal landscape has changed.

Rayes said lawsuits to enjoin a law from being enforced can be mounted if a vague law results in someone being “chilled from engaging in a constitutionally protected activity.’’ When he first ruled in 2021, the judge said he concluded that doctors, facing the new law, likely would err on the side of caution and not perform abortions in cases where a patient’s motive might be ambiguous or where outsiders might cite circumstantial evidence to claim a doctor knew the patient had a “prohibited motive.’’

“But Dobbs eliminated the right to elective abortion,’’ Rayes wrote.

Quoting from the majority decision, he said the June ruling allows a state to ban the procedure to protect prenatal life “at all stages of development’’ for, among other things, “the prevention of discrimination on the basis of race, sex, or disability.’’

“And the Supreme Court has long held there is no right to practice medicine which is not subordinate to the police power of the states,’’ Rayes said.

The judge also rejected arguments that the law interferes with the ability of doctors to counsel their patients. The law kicks in only when they actually perform an abortion “knowing that the patient seeks the abortion because of the presence or presumed presence of a fetal genetic abnormality.’’

“Plaintiffs may have whatever communications with their patients they wish,’’ Rayes said. “But plaintiffs’ ability to provide this care without undue state interference is a battle fought and lost in Dobbs.’’

Rayes did provide a glimmer of hope for those who oppose the measure, suggesting he would consider a legal challenge if and when the law ever is enforced.

In a prepared statement, challengers criticized what they called “this cruel law.”

“This ban interferes with vital provider-patient relationships, preventing doctors from providing essential medical care in fear of facing severe punishment,’’ said a spokesman for the Center for Reproductive Rights, the American Civil Liberties Union and the doctors they represent. “Patients should be given the tools to make the best possible decision regarding their own medical care and empowered to make those decisions for themselves, without interference from the state.’’

The legislation’s sponsor, state Sen. Nancy Barto, R-Phoenix, has said the state must stand up for the lives of “those at risk, the children with Down syndrome and other genetic abnormalities through no fault of their own.”

The state Court of Appeals concluded last year that a 2022 Arizona law restricting abortion on demand to the first 15 weeks of pregnancy trumps a territorial-era state law that outlaws the procedure at any stage other than to save the life of the mother. That decision is now being reviewed by the Arizona Supreme Court.