Top GOP leaders seek to end lawsuit expanding Arizona abortion rights

PHOENIX — The state’s top Republican lawmakers are trying to short-circuit a bid by doctors to void several restrictions the Legislature placed on abortion.

Attorney Justin Smith, representing Senate President Warren Petersen and House Speaker Steve Montenegro, urged a judge Monday to toss the lawsuit challenging three separate restrictions on the procedure.

Smith filed legal briefs saying the provisions remain legal despite voters in November enacting a constitutional provision guaranteeing a “fundamental right to abortion.’’ But he contends the doctors have no legal right to sue because they haven’t shown they are in any danger of being prosecuted if they break the laws.

Smith pointed out that Gov. Katie Hobbs issued an executive order in 2023 giving Attorney General Kris Mayes, her fellow Democrat, the right to prosecute any violations of abortion laws. And Mayes, in turn, has vowed not to bring any such charges as long as she is in office.

So unless the doctors are charged with breaking any of those laws, Smith told the judge he can’t issue a ruling about whether those laws are constitutional and enforceable.

That drew a skeptical response from the judge, Greg Como of Maricopa County Superior Court, who asked what the doctors who perform abortions should do in the meantime.

“Are they supposed to violate the law so that they can find out whether it’s enforceable or not?’’ he asked.

“Or are they just supposed to comply with the law that they believe is unconstitutional?” Como said. “They’re kind of stuck in a Hobson’s choice, aren’t they?’’

Nor did the judge seem to be impressed by Smith’s argument that the presence of Hobbs and Mayes in office — and their decision not to prosecute — leaves nothing for him to decide. He pointed out there’s no guarantee that Mayes, seeking reelection, will be in office after 2026.

Assistant Attorney General Hayleigh Crawford reminded Como that Smith’s clients are arguing that the challenged laws are constitutional and should be enforced. She also noted that there is a seven-year statute of limitations, meaning a future attorney general could bring felony charges against a doctor who violates the law today — something she said is not far-fetched.

“One of their clients is running for attorney general,’’ she pointed out, referring to Petersen, who is seeking the Republican nomination to run against Mayes and is defending the challenged laws as enforceable despite voter approval of Proposition 139, which created the fundamental right to abortion.

Hanging in the balance are several laws that were on the books when voters approved the measure in November.

One is a requirement for a 24-hour waiting period between the time a woman sees a doctor and she has the procedure performed. Kristine Beaudoin, representing the doctors, said that presents a particular hurdle for women in rural areas who would have to make two trips to a doctor.

Closely related to that is a ban on the use of telemedicine for abortion, allowing doctors to prescribe medications to terminate a pregnancy after an online conversation with a patient. Challengers say this restriction, too, harms rural women.

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Finally, there are laws that make it illegal for doctors to perform an abortion if they know the reason a woman is seeking it is due to a fetal genetic abnormality. That, Beaudoin said, creates a situation which discourages doctors from talking with their patients.

Doctors Paul Isaacson and William Richardson, who perform abortions, contend, along with the Arizona Medical Association, that the language in Proposition 139 supersedes all that and makes those laws unenforceable. They want Como to issue an order declaring those statutes are no longer enforceable, and that doctors cannot be charged with a crime for violating them.

The lawsuit also asks that the Arizona Medical Board be precluded from disciplining any doctor who violates those laws. And it seeks a declaration voiding any private lawsuits that seek to enforce the laws.

Smith, however, told Como that courts have no right to rule on any of that until the case is considered legally “ripe,’’ meaning there is an actual case in front of them.

“They must show that there’s a real threat of prosecution in order for their lawsuit to succeed,’’ Smith said. “Here, there is no real threat, credible threat, whatever adjective you put in front of the word ‘threat’ because the state officials who have the authority to enforce these provisions said that they will not, in fact, enforce them.’’

Smith also said there’s little danger of the Arizona Medical Board taking action because the governor has the power to appoint its members.

Beaudoin said that all is irrelevant because of the seven-year statute of limitations.

“There is a credible threat (of enforcement) because the attorney general or a future attorney general could enforce the challenged laws for conduct that is occurring today,’’ Beaudoin said.

“Forcing plaintiffs to wait until a more hostile attorney general is elected would cause substantial irreparable harm,’’ she said, because a new chief prosecutor could file cases pertaining to actions before that person’s election. That forces doctors to comply with the old — and she believes unconstitutional — laws now for fear of who voters might elect in the future, Beaudoin said.

The alternative is no better, she said.

She said Petersen and Montenegro essentially are saying that if the doctors want a ruling now on the laws, they must break the laws “in order to have a day in court to assert the constitutional rights that are clearly so recognized by the amendment.’’

“That defies credulity that someone would necessarily just break the law and ignore the myriad of penalties at issue here,’’ she said.

The judge said he expects to rule in two to three weeks.