PHOENIX โ A federal judge rejected Arizonaโs bid to start enforcing new abortion restrictions despite his order concluding they are likely unconstitutional.
U.S. District Judge Douglas Rayes said Tuesday that the attorney general misread his Sept. 28 order telling the state it cannot make felons out of doctors who perform abortions due to a genetic fetal defect.
Attorney General Mark Brnovich is emphasizing Rayesโ findings that, strictly speaking, a woman possibly could still find a doctor to perform the abortion, the judge wrote.
But Rayes said Brnovich is ignoring the rest of the order, in which he found the law โlikely would make it substantially more difficult for women seeking to terminate their pre-viability pregnancies because of a genetic fetal abnormality to receive constitutionally protected care.โโ
The judge also said Brnovich is misstating the law about when a judge should stay his own order and allow a law he has found unconstitutional to take effect.
He said that the attorney general, at best, is claiming there is โsome possibilityโโ of irreparable injury to the state because it cannot enforce a law approved by the Legislature. But the judge said Brnovich would have to show a probability of irreparable injury, something he has not done. Moreover, the judge said the harm to the state would be โabstract.โ
In fact, Rayes said, the burden would fall on the women who would be denied their constitutional right to terminate pregnancies.
There was no immediate response from the Attorney Generalโs Office.
The measure, approved earlier this year by the Republican-controlled Legislature, makes it a crime for medical providers to terminate a fetus if they know the sole reason the woman is seeking the procedure is a genetic abnormality. The law carries a penalty of up to a year in prison for doctors and others; there is no penalty on the woman.
It comes against the backdrop of a line of U.S. Supreme Court rulings, dating from the historic 1973 decision of Roe v. Wade, that bar states from forbidding a woman from terminating her pregnancy prior to viability. That is the point at which a fetus could live outside the womb, presumed to be somewhere between 22 and 24 weeks.
The Center for Reproductive Rights, abortion providers and others sued over the new Arizona law, charging that it runs afoul of those precedents. They argued that a doctor would not be allowed to perform an abortion once he or she knows the womanโs reason, which would effectively become an absolute ban on the procedure.
In his ruling, Rayes did agree with Brnovich on one point.
He said the law was not an absolute bar to a woman carrying a child with a genetic defect from getting an abortion. Thatโs because a woman, denied an abortion after telling a doctor her reason, is free to seek out another provider and keep her reason secret, or lie about it.
But Rayes, in his new ruling, said that workaround is not enough to allow the state to keep enforcing the law while it seeks an appeal. He said it still amounted to a burden on the constitutional rights of women.
