PHOENIX — Arizona is free to tell women they can’t have an abortion if the reason is because of genetic fetal defect, even if it is prior to viability, the state’s top prosecutor is arguing.
In a new court filing, Attorney General Mark Brnovich acknowledges that SB 1457, approved earlier this year by the Republican-controlled Legislature, would block some women from getting an abortion in Arizona even before a fetus is able to live outside the womb. That viability standard has been the constitutional touchstone for more than 40 years in determining whether the state can interfere with what the Supreme Court has held is a woman’s right to terminate a pregnancy.
Under the law, set to take effect Sept. 29, medical professionals in violation could be sentenced to up to a year in prison, though women who undergo these procedures are exempt from criminal prosecution.
In challenging the law last month, attorney Emily Nester of the Center for Reproductive Rights told U.S. District Judge Douglas Rayes there is a long line of federal court rulings that say the government has no role in decisions made prior to a fetus being viable.
“This ban targets pregnant people who face complex and personal considerations as a result of fetal genetic screening or diagnostic testing during routine prenatal care, including decisions about what is best for them and their families, and then intrudes upon that private decision-making by wrenching away their right to choose pre-viability abortion,” Nester wrote. And she wants Rayes to block it from taking effect as scheduled.
But Brnovich, in his latest filings, told Rayes that the law should be seen not as restricting a woman’s right to abortion but instead as extending the protections of the Americans with Disabilities Act to the unborn.
“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, born or unborn,” Brnovich wrote, quoting from SB 1457. He said the need for legislation is backed by national data he said show that between 61% and 91% of fetuses diagnosed with Down syndrome are now aborted.
And if the anti-discrimination argument doesn’t convince Rayes to uphold the law, the attorney general has another.
He pointed out that the prohibition — and the risk of prison time — exists only when the person performing the procedure “knows that the abortion is sought solely because of the genetic abnormality of the child.” And that, he contends, makes it legal because it is not an absolute ban.
“A woman is still free to seek an abortion from any provider as long as that provider does not possess knowledge that the sole reason the woman seeks an abortion is because of the unborn child’s genetic abnormality,” Brnovich said. And while Arizona law mandates that women be asked the reason for their decision, “nothing in the law compels a woman to disclose if that is the sole reason.”
He also said a pregnant woman could decide not do undergo pre-viability genetic testing.
“Neither she nor her doctor will know whether any genetic abnormality exists,” he said. Even in situations where there is a test and a genetic abnormality is found, the woman could still say it has no bearing on her decision, or that it is only one of several reasons she chooses to terminate the pregnancy.
And then there’s the conscious decision to hide the reason — or lie.
Brnovich said even when a woman is choosing abortion solely because of a fetal defect there is no danger to the doctor if she does not share that information with him or her. And the attorney general said that is true even when the doctor tells her that aborting a fetus based solely on a genetic abnormality is illegal.
Nester, however, said none of that makes it the law acceptable.
“Politicians should not get to decide what an acceptable reason is for seeking an abortion,” she said. “This law is an affront to our constitutional right and our ability to make private decisions free from government intrusion.”
In filing suit, Nester said there are other problems with SB 1457.
The legislation declares the laws of Arizona be interpreted to acknowledge that “an unborn child at every stage of development (has) all right, privileges and immunities available to other persons, citizens and residents of the state.”
Brnovich, however, told Rayes that he should ignore that claim, saying there is no evidence presented about exactly how that language would be enforced.
In seeking to enjoin enforcement of the law, at least while its legality makes its way through the courts, challengers have to show a number of things. One of those is a likelihood of “irreparable injury.”
But Brnovich contends that, at least for the time being, the potential harm to doctors is “too speculative,” depending on whether or how a state court chooses to interpret the law.
That, however, still leaves the potential harm to women who might be denied an abortion. And Brnovich said the lawsuit does not identify any specific woman would would be harmed, “let alone quantify how many women will seek an abortion solely for the prohibited discriminatory reason.”
He noted that in 2019, of women who provided an answer to the question of why they were seeking to terminate a pregnancy, only about 30 checked the box of “genetic risk/fetal abnormality” as one of the reasons.
And Brnovich said if a woman in that situation is denied an abortion she is free to file suit on her own to contest the restriction as it applies to her, versus voiding the law which is what challengers want.
There are two built-in exceptions to the ban.
One is when there is a “medical emergency” and terminating a pregnancy is necessary to prevent the woman’s death or protect her from “substantial and irreversible impairment of a major bodily function.” It also says doctors can perform an abortion when there is a “lethal fetal condition,” defined in the statute as one that is reasonably certain to result in the death of the child within three months after birth.
Brnovich pointed out to Rayes that this isn’t Arizona’s first foray into the area of restricting the ability of women to get an abortion, even prior to fetal viability. There’s a 2011 statute that makes it illegal to abort a fetus based on its gender or race.
Challenges to that law were unsuccessful — but only after a federal judge said there was no evidence that any woman actually had been denied an abortion because of the statute.
A hearing is set for Sept. 22.
