Arizona GOP leaders seek to intervene in abortion case

PHOENIX — The top Republicans in the House and Senate want a judge to let them defend an Arizona law that bars abortions in cases of genetic defects, saying Kris Mayes, the state’s new attorney general, won’t do it.

And they have more than adequate reason to believe that.

In new court filings, lawyers for the anti-abortion Alliance Defending Freedom point out that Mayes, even before she took office, said she believes that restrictions on the right of a woman to terminate a pregnancy run afoul of a provision in the Arizona Constitution that says “no person shall be disturbed in his private affairs.”

And attorney Kevin Theriot said Mayes already has refused to appeal a state Court of Appeals ruling which said women are entitled to an abortion through the first 15 weeks of pregnancy even though another law, dating to territorial days but never repealed, outlaws the procedure entirely except to save the life of the mother.

“Simply put, Attorney General Mayes has publicly expressed that she will not defend and enforce Arizona’s abortion laws, including the laws at issue here,” Theriot told U.S. District Court Judge Douglas Rayes.

He also said that Mayes, who has some “supervisory authority” over county attorneys, has promised to use that power to prevent them from prosecuting what Theriot calls “illegal abortions.”

So, House Speaker Ben Toma of Peoria and Senate President Warren Petersen of Gilbert have asked him to get permission from Rayes to intercede in the case to defend the law.

Mayes on Monday repeated she is not interested in defending the statute.

“My office is going to fight for the ability of women to make their own healthcare decisions,” she told Capitol Media Service. “It is not the place of the Republican-led Legislature to dictate these decisions to women and their doctors.”

But an aide to the attorney general said no decision has been made whether to oppose the effort by Toma and Petersen to intervene in the federal court lawsuit.

At issue is a 2021 law that makes it illegal for anyone to terminate a pregnancy “knowing that the abortion is sought solely because of a genetic abnormality of that child.” That includes chromosomal disorders. Nancy Barto, then a senator and sponsor of the measure, said the legislation is justified to prevent discrimination based on disability — even in the womb.

“We must stand for those at risk, the children with Down syndrome and other genetic abnormalities, through no fault of their own, who are being snuffed out in Arizona and throughout our country, and need to stand up for their life,” she said.

Abortion rights advocates initially got Rayes to block enforcement of the law. He cited a line of Supreme Court cases which said that states may not impose an “undue burden on the woman’s choice.”

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That changed after the Supreme Court overturned Roe v. Wade. Rayes then allowed the state to once again start enforcing the ban, subject to a full-blown trial on its legality.

What’s changed, Theriot told the judge, is the state is no longer represented by Mark Brnovich who was the attorney general at the time, an abortion foe — and was defending the law outlawing abortions in cases of genetic defects. And with Mayes questioning the legality of state-imposed abortion restrictions, he said the only sure way the law will get a defense is to allow Toma and Petersen to intervene in the case — and for him to represent them on behalf of the state as the case goes forward.

“Attorney General Kris Mayes has already changed course in one abortion case,” he told Rayes, that being her decision not to defend the territorial-era ban. In fact, Mayes has said she believes that even the less-restrictive law — the one that bans abortions after 15 weeks — also is illegal based on the “privacy clause” of the state constitution.

“When it comes to Arizona’s abortion regulations, Attorney General Mayes admitted that there is a ‘big difference’ between her positions and those held by former Attorney General Brnovich,” Theriot said. And that, he told the judge, entitles Toma and Petersen, on behalf of the Republican-controlled legislature, to intervene to defend the statute.

The law the GOP leaders want to defend does more than make it a felony for doctors to perform abortions in cases where they know the reason the woman is seeking the procedure is a genetic abnormality.

Another provision makes it illegal to solicit or accept money to finance such a procedure.

It also says that the father of the unborn child who is married to the mother has the right to represent that child in a civil lawsuit over any violation of the law. That same right belongs to the maternal grandparents in a case where the pregnant woman was not yet 18.

And the statutes says an “unborn child” at every stage of development has “all rights, privileges and immunities available to other persons, citizens and residents of this state,” subject only to the limits of the U.S. Constitution and the rulings of the U.S. Supreme Court.

But Barto, in pushing the 2021 law, said concerns about that language are overblown.

“It does not confer personhood,” she said.

Any intervention will come at no cost to the state, an aide to Petersen said. Alliance Defending Freedom is picking up the entire tab, said Kim Quintero, the aide.