Arizona legislators: Doctors don't have legal right to sue over abortion law

Arizona’s top two Republican lawmakers say doctors have no legal right to challenge a 2021 ban on abortions due to fetal abnormalities because they aren’t saying they intend to violate it.

Even if they did violate it, House Speaker Ben Toma and Senate President Warren Petersen are telling federal appellate judges there’s no imminent threat they would actually be prosecuted.

That’s because Democratic Gov. Katie Hobbs issued an executive order removing the power from county attorneys to prosecute any abortion-related cases, giving it solely to Democratic Attorney General Kris Mayes. Mayes has said she doesn’t intend to bring charges against any doctor who violates any abortion laws.

That means the challengers have no legal standing to even be in court and their claim should be thrown out, lawyers for the GOP legislative leaders say.

The arguments come as doctors are going later this month to the 9th Circuit Court of Appeals seeking to overturn a ruling earlier this year by a trial judge. That ruling upheld a 2021 state law, enacted by the GOP-controlled Legislature, that makes it a crime for a doctor to terminate a pregnancy if he or she knows the sole reason it is being sought is a genetic defect of the fetus.

Upheld after Roe overturned

In that ruling, Judge Douglas Rayes pointed to last year’s U.S. Supreme Court decision overturning Roe v. Wade, the historic 1973 ruling that there was a constitutional right of abortion. Rayes concluded the high court’s 2022 decision freed state lawmakers to enact and enforce whatever restrictions they want on abortion.

Rayes said that is true even if the Arizona Supreme Court eventually concludes abortions are legal for all other reasons through the first 15 weeks of pregnancy.

That sent doctors opposed to the 2021 criminalization law to the federal appeals court, asking for at least an interim order barring the state from enforcing it.

The statute makes it illegal to terminate a pregnancy “knowing that the abortion is sought solely because of a genetic abnormality of that child,’’ including chromosomal disorders.

Backers said the legislation is justified to prevent discrimination based on disability, even in the womb.

Rayes initially barred enforcement, saying the law placed an undue burden on women, a burden that prior U.S. Supreme Court rulings going back to Roe v. Wade found to be unconstitutional.

But after the high court overturned Roe, Rayes, in a follow-up hearing, gave the go-ahead for the state to start enforcing the law.

Doctors say law is unworkable

Doctors represented by the Center for Reproductive Rights renewed their challenge, arguing among other things that the wording of the law is so complex as to be unworkable and confusing, leaving physicians unable to know which abortions are and are not legal. They said that puts them at risk of going to prison for making the wrong decision.

But Toma and Petersen, represented by the anti-abortion Alliance Defending Freedom, said there’s a big legal problem in the doctors’ bid to enjoin enforcement: Lack of standing to challenge the law.

Their lawyers say anyone seeking an injunction must show “imminent danger of suffering a concrete harm by showing he intends to engage in conduct that is arguably affected with a constitutional interest.’’

“Abortion no longer invokes a constitutional interest, because there is no constitutional right to obtain an abortion, much less perform one,’’ Toma and Petersen’s lawyers say.

That leaves the argument by the doctors that they no longer offer abortions “whenever there is even the slightest indication of a fetal condition.’’ The doctors said that harms them because they are hampered from offering options counseling to women.

But the GOP lawmakers point out that the 2021 law does not impose a blanket ban on abortions simply because of a fetal genetic condition. Instead, they noted, the law criminalizes the procedure only if the defect is the sole reason the woman is seeking the procedure.

Rayes highlighted that point in earlier rulings, noting there are a “variety of conditions, some of which are inextricably intertwined with the detection of a fetal genetic abnormality.’’

For example, he said, a patient might report she is terminating a pregnancy because she lacks the financial, emotional, family or community support “to raise a child with special and sometimes challenging needs.’’

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Toma and Petersen pick up on that point in their filing, saying the law does not bar terminating any pregnancy simply because a fetal abnormality has been detected.

“The statute does not say ‘slightest indication,’ nor does it cover all fetal conditions,’’ their legal papers state.

Lawmakers: Doesn’t infringe on rights

Nor do they agree it interferes with the rights of doctors to engage in other activities or communicate with their patients, as the only criminal act is performing an abortion knowing the woman’s sole reason was the genetic defect.

“The statute neither mandates nor prohibits fetal screening, providing counseling to patients, or collaborating with other healthcare providers,’’ they wrote. They said that undermines the doctors’ claims they are being denied the right to advise their clients.

“The statute does not prohibit speech,’’ the lawmakers said.

As for whether the doctors have legal standing in the case, “Unless plaintiffs intend to abort unborn children knowingly for the sole reason of a genetic abnormality, they have no intention of breaking the law,’’ attorneys for the GOP lawmakers told the appellate judges. “They have never alleged such an intent.’’ And that means they have no legal interest in the statute, they said.

Toma and Petersen’s lawyers are telling the appellate judges the issues go beyond that.

They said anyone seeking to enjoin enforcement of a law while its legality goes to a full trial must show the threat of imminent harm. That doesn’t exist here, they said.

Mayes, given authority by Hobbs, has stated publicly that she will not enforce laws outlawing abortions, including the one at issue here. The attorney general also has said she is barring county attorneys from bringing their own charges.

Even if Mayes is not reelected in 2026 and her successor decides to prosecute those who violate the law, that’s no reason to enjoin the law’s enforcement now, the GOP lawmakers’ lawyers said.

“This is not a credible threat of prosecution,’’ they told the appellate judges. “It is an invented parade of horribles that have no basis in fact.’’

Other events factor in

The ultimate fate of the law on abortions and genetic defects could depend on two other events.

One is that the Arizona Supreme Court is weighing whether last year’s ruling overturning Roe v. Wade reinstated the state’s territorial-era law banning all abortions except to save the life of the mother. If that’s how the justices rule, the question of whether abortions are allowed or prohibited in cases of fetal defects becomes moot.

The other is an initiative proposing an amendment to the Arizona Constitution that would guarantee the right of women to terminate a pregnancy. If that were to be approved in 2024 it would pretty much override whatever the federal courts rule in this case.

Previous case

There is some precedent for what Toma and Petersen are arguing about who has standing to sue.

Arizona legislators approved a 2011 law that bans abortions based on the race or sex of the child.

U.S. District Court Judge David Campbell said the groups who filed suit against it contended the statute “stigmatizes and denigrates their members on the basis of race and gender,’’ based on comments by Rep. Steve Montenegro, R-Goodyear, alleging ethnically and racially based trends in abortion decisions.

Campbell threw out the lawsuit, saying there was nothing in the claim to show any individual suffered a personal injury because of what the Legislature enacted, beyond psychological consequences. That meant the groups that sued had no right to challenge the law, he said.