PHOENIX β The Republican-controlled Legislature voted along party lines Thursday to impose a new restriction on a womanβs right to terminate a pregnancy by making it a crime to abort a fetus because of a genetic abnormality.
GOP lawmakers said they were acting to protect disability rights.
Senate Bill 1457, which now goes to Gov. Doug Ducey, says any medical professional who performs or aids an abortion in those cases can be sentenced to up to a year in state prison. The Republican governor has not said whether he will sign or veto the measure.
The measure would also:
Allow the husband of a woman who seeks such an abortion, or the womanβs parents if she is younger than 18, to sue on behalf of the unborn fetus.
Outlaw the ability of women to get otherwise-legal drugs to perform an abortion through the mail or other delivery service.
Declare that the laws of Arizona must be interpreted to give an unborn fetus the same rights, privileges and immunities available to anyone else.
βWe must stand for those at risk, the children with Down syndrome and other genetic abnormalities, though no fault of their own, who are being snuffed out in Arizona and throughout our country, and need to stand up for their life,ββ said Sen. Nancy Barto, R-Phoenix, the billβs sponsor.
βWhat this bill is about is giving a child the right to live,ββ said Sen. Warren Petersen, R-Gilbert. He pointed out that Arizona already has laws against discriminating against those with disabilities.
βIf we take actions to protect those with disabilities outside the womb, we should also protect them from discrimination inside the womb,ββ Petersen said.
But Rep. Rosanna Gabaldon, D-Green Valley, said those claims ring hollow.
βThis bill is an attempt by anti-abortion groups to co-opt the mantle of disability rights,ββ she said.
Rep. Kelli Butler, D-Paradise Valley, said the measure is not backed by any organization that lobbies on behalf of the disabled.
In many ways, the arguments by some supporters confirmed that the measure has less to do with disability than is a way for those opposed to abortion in all forms to find ways to chip away at the historic 1973 U.S. Supreme Court decision that says women have a right to terminate a pregnancy prior to the viability of a fetus.
βAbortion is not health care,ββ said Sen. Paul Boyer, R-Glendale. βAbortion takes the life of an innocent child every single time.ββ
Rep. Jacqueline Parker, R-Mesa, whose grandfather was an obstetrician, said she sees nothing wrong with criminalizing abortion.
βA doctor who intentionally kills a patient should be charged with a felony,ββ she said.
Constitutional issues
It isnβt clear whether the measure is constitutional.
In the years since Roe v. Wade, the justices have allowed states to impose some restrictions on the procedure. In general, though, these have been limited to questions of protecting the life of the mother.
Petersen pointed out that five other states have similar laws. Those include Ohio, where the statutes say a doctor can be punished for performing an abortion after a patient says that a fetus having Down syndrome is part of her decision.
Earlier this month a divided federal appeals court agreed to allow that law to take effect, with the majority concluding it furthers the stateβs interest in affirming that individuals with the genetic disorder βare equal in dignity and valueββ with others. The judges said it does not impose an absolute ban on abortions.
None of these laws, however, has yet to get to the Supreme Court.
Doctors say bill will create problems
Thursdayβs vote came despite opposition from several medical associations that urged lawmakers not to criminalize the doctor-patient relationship. Barto said those groups donβt represent all doctors.
Two doctors in the Legislature, however, said the measure would create problems.
Rep. Randy Friese, D-Tucson, said there needs to be trust and communication between a doctor and a patient.
βThis bill will diminish both things,ββ Friese said.
He said it could cause patients to wonder whether the advice a doctor is giving is based on their best interests or whether the doctor fears the possibility of criminal charges for taking certain action.
Rep. Amish Shah, D-Phoenix, noted that the measure was amended to ensure that a woman would not be forced to carry and give birth to a fetus that clearly would not live. As approved, it would allow doctors to perform abortions without fear of prosecution in cases where there is a βlethal fetal condition,ββ meaning that, with a reasonable certainty, the child would die within three months after birth.
βDo you really believe we know that?ββ Shah asked colleagues about having to make such a judgment call with the risk of a prison term. βWeβre not God, weβre doctors.ββ
Sen. Kirsten Engel, D-Tucson, openly worried about the language declaring that a fetus has the same rights as βother persons, citizens and residents of this state.ββ
βThis provision will open up the potential for criminal liability, prosecutions for murder, manslaughter, dangerous crimes against children, liability for wrongful death to any person responsible for a womanβs miscarriage,ββ she said. And Engel said that could be true even if the person responsible, perhaps the driver of another vehicle, did not know the woman was pregnant. The woman herself may not even know sheβs pregnant, she said.
Barton countered that the wording on the rights of an unborn child has a caveat, making it βsubject only to the Constitution of the United States and decisional interpretations thereof by the United States Supreme Court.ββ And Barto said those rulings, at least for now, do not recognize a fetus as a person.
Several women in the Legislature who spoke against the measure chided proponents for having the state make decisions for them.
βWhat a person does with their body, what a person does to their body, is between them and their loved one,ββ said Sen. Jamescita Peshlakai, D-Cameron.
She said what this measure does is akin to telling men they should be circumcised.
βThis is gender discrimination,ββ Peshlakai said.
Rep. Bret Roberts, R-Maricopa, had a different take on the issue.
βMen will never be equal to women because men canβt carry or give birth to new life,ββ he said. βI donβt know why a woman would want to be equal in that regard.ββ
Exemption created
The measure also was altered to create an exemption for in-vitro fertilization, a situation in which multiple eggs are fertilized and may even be implanted, with physicians then doing what Engel described as βselective reductionββ of embryos to maximize the chances of survival of other implanted embryos. More to the point, she said IVF also routinely involves doing genetic testing on embryos prior to implantation.
The result, she said, is those wealthy enough to afford IVF will retain the legal right to terminate embryos where there are genetic abnormalities. But a doctor who aborts a fetus for those same genetic issues would be subject to a felony.
