Judge: Lawmakers can defend Arizona's 'genetic abnormalities' abortion law

PHOENIX — An Arizona law outlawing abortions in cases of fetal genetic defects will not go undefended in court.

U.S. District Court Judge Douglas Rayes has agreed to let House Speaker Ben Toma of Peoria and Senate President Warren Petersen of Gilbert argue to him that there's nothing unconstitutional about the 2021 statute. And they, in turn, will be represented in court by the anti-abortion Alliance Defending Freedom.

The ruling comes over the objections of groups trying to convince Rayes that the law is flawed, interfering with doctor-patient relationships. In fact, they had convinced him of that once.

But all that changed when the U.S. Supreme Court overturned Roe v. Wade last year, a ruling allowing each state to enact and enforce its own abortion restrictions. Based on that, Rayes allowed the state to start enforcing the ban while he considers any remaining legal issues.

What makes his latest decision so important is that Republican Mark Brnovich, the state's former attorney general and defender of the law, left office at the end of last year after losing his bid for U.S. Senate.

Arizonans elected Democrat Kris Mayes, who has argued that a woman's right to abortion is protected by the Arizona Constitution, regardless of what the U.S. Supreme Court says.

Mayes told Rayes she won't defend the law.

So Toma and Petersen asked for — and have now received — permission to have the Alliance Defending Freedom argue that the law is valid.

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.

In his initial ruling in 2021, Rayes said the law imposed an undue burden on women, which prior U.S. Supreme Court rulings going back to Roe v. Wade found unconstitutional.

The only thing is, the basis for that went away after last year's Supreme Court ruling overturning Roe. So Rayes gave the go-ahead for the state to start enforcing the law.

But he agreed to hear arguments by challengers, represented by the Center for Reproductive Rights, that the wording of the law is so complex as to be unworkable — and so confusing — that it leaves physicians unable to know what abortions are, and are not, legal. And that puts them at risk of going to prison for making the wrong decision.

That all comes down to the reason a woman is seeking an abortion.

It starts with what did the doctor "know" about the reason.

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Attorney Jessica Sklarsky said that each patient's decision about whether to terminate a pregnancy is not only personal and complex but is "motivated by a variety of considerations, some of which are inextricably intertwined with the detection of a fetal genetic abnormality."

She said that "knowing" requirement — what can trigger criminal charges for doctors — puts them in the position of figuring out exactly what role a diagnosis of a fetal genetic condition played in the woman's desire to have an abortion and whether the diagnosis was the "sole" reason.

Even Rayes, in his initial ruling, said there are a "variety of considerations, some of which are inextricably intertwined with the detection of a fetal genetic abnormality."

"For example, patients sometimes report 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," he wrote in 2021. "If a doctor accepts money to finance such an abortion ... can that doctor face felony prosecution or a civil lawsuit?"

And what, Sklarsky asked, of patients who don't specifically state their motives?

The other half of the problem, she said, goes to the fact the law does permit abortions in cases where the abnormality is considered "lethal," one diagnosed before birth and that will, with reasonable certainty, result in the death of the child within three months after birth.

"There are inherent uncertainties in fetal testing and diagnosis," Sklarsky told the judge. And she said some patients, because of the small risk of pregnancy loss, do not pursue diagnostic testing.

"Yet even when a diagnosis is made in utero, that cannot tell the patient and her physicians specifically how a condition will manifest over a child's lifetime or exactly how long a particular child might live," she said.

Rayes agreed to hear the arguments. But that still left the question of who — if anyone — will defend the latest challenge now that Mayes has told Rayes she will not.

The statute itself authorizes the Legislature to appoint one or more of its members to defend against constitutional challenge. But Sklarsky pointed out that first requires approval of a resolution of both the House and Senate, something that has not occurred.

Rayes agreed. But he decided that the GOP lawmakers have a "significantly protectable interest in the validity and enforcement" of the law — and that Mayes' decision not to defend the statute means there is no one adequately representing that interest.

The legal situation is even more complicated.

Even as Rayes is preparing to hear arguments, Sklarsky is asking the Ninth Circuit Court of Appeals to allow doctors to continue to perform such abortions in the interim. No date has been set for the appellate judges to consider that bid.