PHOENIX — Attorney General Mark Brnovich wants a judge to let him start enforcing a law prohibiting certain abortions despite a federal court ruling that found it unconstitutional.
In new legal filings, Brnovich contends U.S. District Court Judge Douglas Rayes misinterpreted the law when he barred the state last month from making criminals out of doctors who perform abortions knowing the woman’s reason is a genetic fetal defect. The law would make it a felony to perform such abortions, punishable by a year in state prison.
Brnovich argues that nothing in U.S. Supreme Court precedent, going back to the historic 1973 ruling of Roe v. Wade, guarantees a woman has a right to terminate a pregnancy for any reason, even before a fetus is viable.
He also pointed out that the nation’s high court is set to review the issue of whether a state can ban pre-viability abortions, though Brnovich conceded that, for the moment, there is no ruling to that effect.
Instead, he is giving Rayes a laundry list of reasons the state has a “compelling interest’’ in keeping doctors from terminating pregnancies when they are aware that the woman’s sole reason is a genetic defect.
Brnovich said the state’s interest includes “eradicating historical animus and bias against persons with disabilities’’ and sending a strong message that even as genetic testing advances “the state will send a message that it will not permit those advances to result in eugenic abortion.’’
He said ensuring the births of more people with disabilities also “will ensure that the existing disability community does not become starved of resources for research and care for individuals with disabilities.’’
The attorney general also said Rayes must consider the “irreparable harm’’ of preventing the state from enforcing the law while Brnovich asks the 9th Circuit Court of Appeals to overturn his ruling.
“While the law is enjoined, doctors can continue performing abortions knowing that the abortion is sought solely because of a genetic abnormality,’’ he said. “This certainly constitutes irreparable harm.’’
He said Rayes should allow the state to halt these abortions and prosecute doctors who perform them while he appeals.
But getting Rayes to give the go-ahead to enforce a new law he blocked just last month could prove difficult.
The judge specifically ruled that the statute, approved by the Republican-controlled Legislature, places an undue burden on women. That outweighs any interest the state claims to have in promoting life or prohibiting discrimination, Rayes said.
Rayes found several problems with the law, starting with the question of at what point a doctor is presumed to know the reason the woman wants to terminate a pregnancy and therefore would be breaking the law. The judge pointed out that it often is not black and white.
“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 said. “If a doctor accepts money to finance such an abortion ... can that doctor face felony prosecution or a civil lawsuit?’’
More significant is his conclusion the law places an undue burden on women seeking to terminate a pregnancy.
“A woman has a constitutional right to choose to terminate her pregnancy before the fetus is viable without undue interference by the state,’’ Rayes said, citing prior court rulings.
Rayes said the law, rather than encouraging women to choose to give birth, which is a permissible goal, instead “is designed to thwart them from making any other choice.’’
In asking Rayes to stay his ruling, Brnovich also claims that the injunction the judge issued can be justified only if the law operates as a substantial obstacle to abortion “in a large fraction of the cases.’’ The attorney general said there is no evidence that it would create such an obstacle.
Brnovich said there is no record of how many women in Arizona terminate a pregnancy solely because of a genetic defect. He cited data from the Arizona Department of Health Services that no more than 191 women voluntarily reported they were seeking an abortion for that reason.
Rayes has not set a date to rule on Brnovich’s request to enjoin his own ruling.
Brnovich, a Republican candidate for U.S. Senate, has staked out a strong anti-abortion position, even to the point of having his office write legal briefs urging the U.S. Supreme Court to uphold bans and restrictions imposed by other states. He also signed onto a legal brief urging the justices to overturn Roe v. Wade.
