The future of abortion in Arizona may still mean women here can get the procedure
By Howard Fischer
Capitol Media Services
PHOENIX -- Some Arizona doctors are seeking an emergency order blocking the state from enforcing a provision of a 2021 law that purports to give the same legal rights to a fetus as anyone else.
In legal papers filed Sunday, attorneys for the Arizona Medical Association and others contend that the provision could subject them to criminal prosecution for performing abortions that remain legal even after the U.S. Supreme Court overturned Roe v. Wade. In fact, attorney Jessica Sklarsky of the Center for Reproductive Rights, said it even could be read to allow criminal charges, like aggravated assault, to be filed against not jut a doctor but a woman who gets an abortion.
So she wants U.S. District Court Judge Douglas Rayes to enjoin the state from applying what's called the "Interpretation Policy'' to abortion cases here.
A group of attorneys who represent doctors who perform abortions actually had asked Rayes to rule on the legality of the provision last year. But the judge sidestepped the question, saying there was no evidence at the time that, given abortion was legal, it would lead to anyone being prosecuted.
But Sklarsky said that is no longer the case now that the legal landscape has changed with what the Supreme Court decided.
In a separate development, an attorney for Alliance Defending Freedom, a Christian law firm based in Scottsdale, told Capitol Media Services on Monday she now believes that Arizona is not yet free to start enforcing the law that was on the books prior to the historic 1973 ruling despite Friday's ruling.
Denise Harle pointed out that the state Court of Appeals issued its own injunction that year blocking the law that allows doctors to be prosecuted, with mandatory prison terms, for terminating a pregnancy. And what that means, she said, is someone would need get that injunction lifted, regardless of Friday's U.S. Supreme Court ruling.
At the same time, petitions continue to be circulated to put a specific right to abortion in the Arizona Constitution, a provision if, approved by voters, would keep the procedure legal here.
Shasta McManus, treasurer of Arizonans for Reproductive Freedom, said there has been an "explosive'' response since the Friday ruling.
McManus said just the organization's own volunteers collected more than 15,000 signatures over the weekend. And She said that does not include those being collected by outside volunteers as they first have to get their forms notarized before turning them in ahead of the July 7 deadline.
But she said that in the 72 hours following Friday's ruling the organization collected more than $50,000 in donations. And there is a "Rock for Roe'' fundraiser Tuesday night at the Hotel Congress in Tucson which she said already has more reservations than capacity.
McManus acknowledged that her organization, which got started only last month, needs 356,467 valid signatures on petitions by that July 7 deadline. And given the error rate for such drives, the true goal may be closer to 450,000.
She said, though, that even if the group cannot get on the 2022 ballot it will start over, with more time, to put the issue to voters in 2024.
Meanwhile it may still be possible for some women to get an abortion in Arizona. The pre-1973 law does have an exception to save the life of the woman.
Based on the Friday ruling, Planned Parenthood Arizona immediately announced it would cease all abortions -- including those to save a patient's life -- while it studies the legal implications.
But Banner Health, the state's largest hospital network, said Monday it has "paused some medical and surgical procedures that procure the miscarriage of a pregnant woman with while continuing with others that are still compliant with state law.'' Spokeswoman Becky Armenariz said the hospital chain is "giving guidance to our providers and pharmacists based on state laws.''
All that, however, could depend on the issue that Sklarsky is now raising.
The new legal filing pertains to a provision in a 2021 state law that made it illegal to perform abortions if the doctor knows the woman's reason is a genetic fetal defect.
In a ruling last year, Judge Rayes barred enforcement, saying the law imposes an undue burden on women. And he said that outweighs any interest the state claims in promoting life.
But the judge declined to enjoin a separate section which says "the laws of this state shall be interpreted and construed to acknowledge, on behalf of an unborn child at every stage of development, all rights, privileges and immunities available to other persons, citizens and residents of this state, subject only to the Constitution of the United States and decisional interpretations by the United States Supreme Court.''
Rayes said there was no danger that those words would or could be used to prosecute doctors.
"If a particular application of the Interpretation Policy restricts plaintiffs' activities in some concrete way, the federal courts stand ready to address any constitutional challenges as to that specific application,'' the judge wrote. But Rayes said that, for the moment, he was unwilling to decide "abstract propositions'' or address issues that might arise only in the future.
Sklarsky said that, with Friday's Supreme Court ruling, the time has come for Rayes to decide the issue.
"It is entirely unclear whether the Interpretation Policy's requirement that all Arizona statutes be interpreted and construed to acknowledge the rights of fertilized eggs, embryos, and fetus at any stage of development can be used to criminalize abortion care under several Arizona statutes,'' she told Rayes. And Sklarsky specifically cited laws against aggravated assault, reckless endangerment, child endangerment and child abuse.
"Given the uncertainty and the threat of severe criminal, civil and professional penalties, plaintiffs ... have accordingly stopped provision abortion care in Arizona because they are afraid the Interpretation Policy will be used to prosecute them and potentially their patients for the provision or receipt of (ITALICS) any (ROMAN) abortion care,'' Sklarsky wrote.
"Put simply, the vagueness doctrine prohibits the state from forcing plaintiffs, their members, and their patients to guess whether or not the Interpretation Policy can be used to criminalize the receipt and provision of abortion care,'' she said. "Yet that is exactly what the state is doing.''
Brittni Thomason, press aide to Attorney General Mark Brnovich, said she had no immediate answers, either to the question of whether the 1973 Court of Appeals injunction was still in effect or the issues raised by Sklarsky.
"Our legal team is still analyzing this,'' she said.
But Maricopa County Attorney Rachel Mitchell told Capitol Media Services she doubts whether the language in the 2021 law about the rights of a fetus actually could be used to bring criminal charges against anyone, particularly against a woman who chooses to terminate her pregnancy.
It starts, she said, with the fact that the same 2021 law specifically repealed another statute that made it illegal for a woman herself to obtain an abortion unless it was medically necessary to preserve her own life.
"The clear intent of the legislature through recent statutes or bills that they passed, is to not punish the woman,'' Mitchell said.
And there's something else. She said that specific statutes always overrule more general ones. And in this case, Mitchell said, the specific statute criminalizing abortion would govern how other criminal laws -- including the Interpretation Policy -- could be enforced.
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