Judges question enforceability of Arizona's genetic-defects abortion law

PHOENIX — Attorneys for top Republican lawmakers told federal appellate judges Monday they shouldn’t block enforcement of a ban on abortions due to genetic defects because the doctors who filed suit have not shown any “credible threat’’ they would be prosecuted.

An attorney for Senate President Warren Petersen and House Speaker Ben Toma pointed to Gov. Katie Hobbs’ action stripping the state’s 15 county attorneys of their authority to bring criminal charges against doctors for violating any abortion laws and giving it to Attorney General Kris Mayes. Mayes, in turn, has said she won’t prosecute any abortion case, noted the lawmakers’ attorney, Denise Harle.

But some of the judges of the 9th Circuit, meeting in Phoenix, appeared unconvinced that the statements of two elected officials about their intent is enough to ensure that doctors are in no danger of winding up in court.

Judge Andrew Hurwitz said the question of whether Hobbs even has the authority to limit what elected county attorneys can do has never been litigated.

Even if she does have that power, he noted there is a 7-year statute of limitations on prosecutions. That means if a different governor and attorney general are elected in 2026, they could reach back and bring charges for activities in 2023.

Hurwitz said the law also has a private right of action, allowing the husband of a woman who has such an abortion to file a lawsuit against a doctor, making the refusal of Hobbs and Mayes to bring charges legally irrelevant.

If a majority of the panel of judges decides doctors do have legal standing to sue, the appellate court will send the case back to a trial judge to reconsider his refusal earlier this year to block enforcement of the law against abortions in cases of genetic defects which, for the moment, is now in effect.

There also is a complicating factor.

The Arizona Supreme Court is set to consider arguments in December about whether the U.S. Supreme Court’s overturning of Roe v. Wade reinstates a territorial-era ban on all Arizona abortions except to save the life of the mother. If that is the conclusion of the state’s high court, even Jessica Sklarsky of the Center for Reproductive Rights, who is representing the doctors, conceded it would make the legality of the genetic defects law moot.

The 2021 measure makes it a Class 6 felony, with a one-year prison term, to terminate a pregnancy if the woman is seeking the procedure solely because of a fetal genetic defect.

It was initially defended by then-Attorney General Mark Brnovich.

“The Legislature sought to protect the disability community from discriminatory abortions, including Down-syndrome-selective abortions, and send an unambiguous message that children with genetic abnormalities, whether born or unborn, are equal in dignity and value to their peers without genetic abnormalities, whether born or unborn,’’ Brnovich said when the law was challenged by doctors who perform abortions.

U.S. District Court Judge Douglas Rayes had blocked enforcement, citing the 1973 Roe v. Wade ruling that women had a constitutional right to terminate a pregnancy. But he reversed himself after Roe was overturned last year, saying that eliminated any constitutional protections for abortion and for doctors to perform them, leaving states free to enact their own rules.

But Skarsky told the appellate judges Monday that still leaves doctors at risk of being prosecuted under what she called a “vague’’ law that precluded them from counseling patients who come to them seeking care and possibly an abortion.

Among the issues are situations where a fetal genetic defect may be one reason a woman seeks to terminate a pregnancy but is not the sole reason. She said that puts doctors at risk of winding up facing not just criminal penalties but also civil fines and possible loss of their license to practice medicine.

Harle, however, told the appellate judges there is no such imminent threat that would allow the doctors to seek federal court intervention to block enforcement. She said it comes down to the actions of Hobbs and Mayes.

Hurwitz, however, wanted to know exactly where in court records is there any disavowal by Mayes of an intent to prosecute doctors.

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“I checked her website this morning,’’ Harle responded.

That left Hurwitz unimpressed, saying he’s still looking for something he and his colleagues can cite.

“An express disavowal is not required,’’ Harle responded. She said it is irrelevant that Hobbs and Mayes may be gone after 2026 and replaced by abortion foes, saying any threat a doctor might be prosecuted after that is “too speculative.’’

Hurwitz, however, pointed out not only that the Legislature approved the ban on such abortions and then-Gov. Doug Ducey signed it, but that Petersen and Toma are now in court, represented by Harle and the anti-abortion Alliance Defending Freedom, seeking to allow the law to be enforced.

“Isn’t that enough to show that there is a credible — not a certain — but a credible threat of enforcement?’’ Hurwitz said.

No, argued Harle.

But Judge Roopali Desai said it would appear the doctors do have standing to challenge the law.

“They’re saying, ‘We would provide these services, or at least some services but for this law that very seriously threatens our liberty interests,’ ‘’ Desai said. “There’s criminal prosecutions, there’s fines.’’

Harle, however, said the only way doctors can seek relief in court is if they say they actually intend to terminate pregnancies knowing that the sole reason the woman wants the abortion is a fetal genetic defect. Anything else, she said, remains legal.

Desai said it’s not that black and white and not crystal clear what the law permits or prohibits.

“What they’re saying is, ‘We’ve curtailed our medical practices because we are unclear what, in fact, violates the many different statutes that comprise the reason scheme,’ ‘’ she said, meaning the reason a woman wants an abortion. The result, Desai said, is doctors say they are “over-complying’’ with what they think the law requires and are not providing certain services they would otherwise provide.

Desai also said Rayes may have gotten it wrong when he said the doctors lost their right to sue when the constitutional right of abortion was overturned last year. She said just the threat of someone facing prosecution under a vague law could itself be considered a constitutional violation.

Skarsky said even if Hobbs and Mayes have disavowed any intent to bring criminal charges — and even if they can remove authority from county attorneys — that still doesn’t end threats to doctors.

She pointed out that the law allows both the state Department of Health Services and the Arizona Medical Board to enforce the provisions, regardless of what the governor and attorney general decide, and regardless of whether they can usurp the authority of county attorneys.

“So there is a very real threat from those entities that they will take action against physicians, even putting the county attorneys aside,” she said.

The judges did not say when they will rule.