PHOENIX β A federal judge will decide whether a provision in a 2021 law could be used to bring criminal charges against doctors who perform otherwise legal abortions, including those to save the life of the mother.
Arizona has long interpreted its laws against child abuse, child endangerment and assault to not apply to legal abortions, attorney Jessica Sklarsky of the Center for Reproductive Rights told Judge Douglas Rayes on Friday.
Last year, however, lawmakers enacted a bill that all state statutes, without exception, have to be interpreted and construed to βacknowledge, on behalf of an unborn child at every stage of development, all rights, privileges and immunities available to other persons.ββ
Attorney General Mark Brnovich contends the June 30 decision by the U.S. Supreme Court overturning the Roe v. Wade ruling guaranteeing a federal constitutional right to abortion now frees Arizona to immediately start enforcing a state law against it that dates to territorial days. That law outlaws all abortions except to save the life of the mother.
Skarsky, who represents abortion doctors and the American Civil Liberties Union, argued that could free Brnovich β and any other prosecutor β to now use this βpersonhoodββ language to charge doctors performing any abortion with crimes such as child abuse, child endangerment and assault.
Further complicating the issue, there is a 1973 injunction issued by the Arizona Court of Appeals blocking the attorney general from enforcing what had been the 1901 law outlawing abortion.
Brnovich has said he intends to ask Pima County Superior Court, where that case originally started, to dissolve the injunction based on the Supreme Court ruling overturning Roe.
Legal in Pima County?
He has not yet done that. But Assistant Attorney General Kate Sawyer told the judge Brnovich believes that injunction applies only in Pima County, meaning the 1901 statute is in effect in the other 14 counties.
That acknowledgment also means that, at the very least, all pre-viability abortions remain legal in Pima County unless and until a judge lifts that injunction, something that is not a legal certainty.
But Sklarsky said Pima County doctors wonβt perform abortions because of the fear they could still be prosecuted for other crimes based on the βpersonhoodββ language.
There is also the question of whether there will be other efforts to keep abortion legal in Arizona based on other legal theories, including that there is a specific right to privacy in the state constitution.
βThis much is certain: Without an injunction or some other court order preventing the interpretation policy from being used to criminalize abortion services, plaintiffs cannot and will not resume providing care in Arizona,ββ Sklarsky told the judge.
AGβs Office: No role for federal judge
Sawyer, however, in essence, told Rayes there is nothing for him to decide. She said the personhood language about how other laws have to be interpreted is not, in itself, a criminal law that can be enforced β or that he can enjoin.
βSo what does it do?ββ the judge asked.
The assistant attorney general said the language acknowledging the personhood of unborn children simply explains how other existing statutes should be interpreted. That left the judge unsatisfied.
βI donβt understand,ββ Rayes said. βHow does it help a judge or someone whoβs in law enforcement interpret the law?ββ
βThere could be any number of reasons,ββ Sawyer responded, suggesting for example a judge could use it in ruling in a probate case.
She also said if doctors fear being prosecuted for child abuse they are free to ask a state judge to decide the scope of the law and whether the requirement that laws be interpreted to acknowledge the personhood of fertilized cells, an embryo or a fetus β there are legal distinctions β subjects them to possible criminal penalties. That suggestion drew a skeptical response from the judge.
βThey can eliminate that by hiring a lawyer and going to court and filing a lawsuit for a declaratory judgment as to how that lawsuit might be applied?ββ Rayes asked.
βYes, that would be the function of a state court in this instance,ββ Sawyer responded.
But Sklarsky said it is precisely the role of federal courts to ensure laws are sufficiently clear so that people know what they have to do to avoid violating them. And that is not the case here, she said.
Will new Arizona law supercede?
Sklarsky said there are other issues.
One is the fact that Gov. Doug Ducey has insisted a law approved earlier this year by the Legislature, outlawing abortions after 15 weeks, will supersede any more stringent territorial-era law when it takes effect in late September.
If Ducey is correct β and even he has acknowledged that issue will have to be litigated in state court β that would keep legal the vast majority of abortions that until now have been performed in Arizona.
Sklarsky said that eventuality also would require enjoining the personhood provision to ensure it would not, and could not, be used to make criminals out of the doctors who perform such abortions.
What Rayes decides could plow new legal ground.
The judge noted that at least two other states, Missouri and Kansas, have similar language requiring that all statutes be interpreted to acknowledge the personhood of a child at any stage of development, including in the womb. Sklarsky acknowledged that neither has been challenged.
But she said that was because abortion law until now has been governed by Roe, making it unnecessary for someone to seek judicial intervention. Skarlsky said this will be the first case going to a federal court about the issue since the Supreme Court overturned Roe.
The judge gave no date for when he will rule.
