By Howard Fischer
Capitol Media Services
PHOENIX -- Attorney General Kris Mayes will not defend the legality of abortion restrictions on the books in Arizona being challenged in the wake of enactment of Proposition 139.
Mayes told Capitol Media Services that her staff has reviewed three laws that the Center for Reproductive Rights and others contend run afoul of the initiative approved by voters in November that enshrine a "fundamental right to obtain an abortion'' in the Arizona Constitution in cases prior to fetal viability, generally considered between 22 and 24 weeks of pregnancy. The challenged provisions include a 24-hour waiting period and a prohibition on prescribing abortion-inducing drugs through telemedicine.
The attorney general acknowledged that Proposition 139 is not an absolute ban on restrictions.
It does allow statutes that are enacted "for the limited purpose of improving or maintaining the health of an individual seeking abortion care.'' And even if a measure falls within that definition, the constitutional amendment says any state law cannot "infringe on the patient's autonomous decision making.''
But Mayes said the challenged provisions cannot pass that two-tiered test. So she will not try to convince Maricopa County Superior Court Judge Randall Warner to dismiss the challenge.
Her decisions does not necessarily mean that no one will defend the laws, all enacted before Prop 139 was approved by a 3-2 margin.
House Speaker Steve Montenegro, who has voted for every abortion restriction that has come before him in his time in the Legislature, told Capitol Media Services that he will seek to intervene in the case.
"Arizona's laws exist to protect the health and safety of all pregnant women and their unborn children (and) to prevent unlawful discrimination,'' the Goodyear Republican said. "They deserve a strong defense.''
Warner is expected to let him intercede. In fact, in an order issued last week, the judge said he has "concern about declaring a statute unconstitutional'' without someone defending it. Warner said he is including to "permit intervention for purpose of defending the statutes if requested.''
Mayes said she hasn't decided whether to oppose such a move. But she questions whether it will make any difference.
"We believe this is a pretty clear-cut case,'' she said.
"The laws do not meet the constitutional standard,'' Mayes said. ``It would be hard to see what arguments they can make to the contrary.''
The lawsuit, filed last month, is the second since Prop 139 was approved.
Earlier this year, Maricopa County Superior Court Judge Frank Moskowitz declared the state's 15-week limit on abortion unconstitutional,'' going so far as to "permanently and forever'' block state officials from enforcing the law.
In that case, as in this one, Mayes declined to defend the law, saying she agreed with challengers that approval of the ballot measure made it unenforceable. But in that case, no lawmakers nor private anti-abortion groups sought to intervene to defend the statute.
Now the challengers are going after other laws they also contend fail to pass constitutional muster.
Perhaps the one with the broadest reach is a requirement that says women wanting an abortion must first go to an abortion provider at least 24 hours ahead of time, and not just for a mandatory ultrasound, regardless of whether it is medically necessary.
"In addition, much -- perhaps most -- of the information that patients are required to listen to has nothing to do with the medical procedure or health-and-safety considerations,'' Mayes is telling Warner.
For example, it requires doctors to describe the "probable anatomical and physiological characteristics'' of the fetus at the time the abortion is performed. And patients must be told that medical assistance may be available for prenatal, childbirth and neonatal care, as well as the fact that the father of the unborn child is financially liable to provide support "even if he has offered to pay for the abortion.''
None of this, Mayes said, conforms with the language in Prop 139 which says restrictions are legal only if they are "for the limited purposes of improving or maintain the health of an individual seeking abortion care.''
Also challenged is a closely related ban on the use of telemedicine for abortions. That means patients must go to a clinic for to consult remotely with a doctor to get a prescription for mifepristone, a medication that is used to terminate a pregnancy in the first 10 weeks.
It also means that prescriptions cannot be filled by mail.
Mayes said there might be reasons that some patients should have a face-to-face visit. But that, she said, is not what the challenged law says.
"The telemedicine ban categorically prohibits all use of telemedicine and all mail delivery of abortion medication, regardless of clinical appropriateness or patient circumstances,'' Mayes said. And she said it's not like Arizona bans prescribing drugs without a personal visit, pointing out that men can get Viagra without ever stepping into a doctor's office.
Finally the lawsuit challenges a provision that spells out that a doctor may not terminate a pregnancy "knowing that the abortion is sought solely because of a genetic abnormality of the child.''
In approving the law in 2021, lawmakers said it "protects the disability community from abortions,'' specifically mentioning selective abortions when a fetus is diagnosed with Down syndrome.
The legislation also says it guards against "coercive health care practices that encourage selective abortions of all persons with genetic abnormalities.'' And it also says it protects the "integrity and ethics'' of the medical profession, saying that any "industry'' that is associated with the view that some potential lives are worth more than others "is less likely to earn or retain the public's trust.''
Mayes said none of those reasons meet the constitutional requirement of being enacted "for the limited purposes of improving or maintaining the health of an individual seeking abortion care.''
The attorney general said she is not arguing that Prop 139 is an absolute bar on any abortion laws.
"The Legislature can certainly attempt to pass legislation that doesn't violate these constitutional provisions,'' she said. ``But we have just determined that these three laws do violate the intent of the voters and the new constitutional amendment protecting abortion rights.''
The outcome of this lawsuit may not be the end of legal fights.
Erika Mach, spokeswoman for Planned Parenthood, which also is challenging these three provisions, previously told Capitol Media Services there are more than 40 such restrictions on the books.
And then there are the laws yet to come.
Rep. Rachel Keshel is pushing a new law designed to place even more restrictions on what has to happen before a doctor can prescribe any abortion-inducing drugs.
The proposal by the Tucson Republican not only would require a face-to-face visit but an independent verification a pregnancy exists, determination of the patient's blood type, and informing the patient of "possible physical and psychological aftereffects and side effects'' of the use of the drug, including that she "may see the remains of the unborn child in the process of completing the abortion.''
Her HB 2681 also would allow a civil suit against doctors by the woman given the drug, the parents if the patient is a minor, and, in most cases, the father of the unborn child that is aborted.
The measure was approved on a party-line vote in March by the state House as well as the Senate Judiciary Committee. It now awaits floor debate in the full Senate.
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