By Bob Christie
Capitol Media Services
PHOENIX — Arizona doctors hoping to void several abortion restrictions are going to have to make their case in court.
Maricopa County Superior Court Judge Greg Como said he doesn't believe that top Republican lawmakers who are defending the laws challenged by the doctors missed a deadline for filing paperwork. And the judge said that even if they did, it did not harm the challengers.
The ruling came in response to a request from the doctor’s lawyers, who argued that the GOP lawmakers repeatedly missed deadlines and should be barred from trying to defend the case.
That would leave no one to do so, because Democratic Attorney General Kris Mayes told the court she believes the challenged laws are unconstitutional and she won’t defend them.
The ruling came in advance of a Friday hearing where Como heard from lawyers for both the doctors and the lawmakers and set a schedule for three days of arguments in November.
But first, Como said he will hold a hearing next month on an effort by Speaker of the House Steve Montenegro and Senate President Warren Peterson to toss out the entire case.
Lawyers for Montenegro and Petersen argue that the lawsuit filed on behalf of two abortion doctors by the Center for Reproductive Rights and the national and state offices of the American Civil Liberties Union fails because there’s no “credible threat” that the provisions will be enforced.
Mayes and Gov. Katie Hobbs “have both gone to great lengths to portray themselves as leading advocates for abortion in Arizona,” attorney Andrew Gould, a former state Supreme Court justice, wrote in his motion to dismiss the case.
“There is no plausible chance that any person will face enforcement of any of the challenged provisions,” because the two elected Democrats have made that clear . “Because there is no credible threat of enforcement, Plaintiffs’ claims are not ripe.”
The abortion restrictions are at issue because after the U.S. Supreme Court eliminated the right of a woman to have an abortion in 2022, Arizona citizens followed last year by enacting a constitutional amendment that says that right is sacrosanct and barred most efforts to restrict it.
But the initiative, passed as Proposition 139, didn’t automatically overturn the restrictions.
One of them, a ban on any abortions after 15 weeks of pregnancy enacted by the Legislature and signed by Republican former Gov, Doug Ducey just before the Supreme Court abortion decision, was permanently blocked by a judge in March because of Proposition 139.
But many others remain, including several targeted by the doctors who sued in May.
The restrictions Como must decide upon include a 24-hour waiting period before a woman can have an abortion. Others are mandatory in-person medical exams and ultrasounds, a prohibition on prescribing abortion pills using telemedicine or mailing the medication and one enacted in 2021 barring abortions if the woman seeks it only because her fetus has a genetic condition like Down Syndrome.
A doctor who performs an abortion knowing it was only for that reason could lose their medical license and be charged with a felony punishable by up to two years in prison. Anyone financing that abortion faces as much as 8 ¾ years in prison. There are exceptions if the fetus could not survive.
In her filing declining to defend the challenged law banning abortions because of a genetic abnormality referred to as the “Reason Ban,” lawyers at Mayes’ office said it ran afoul of Proposition 139.
“The Reason Ban Scheme, on its face, seeks to limit an “individual’s autonomous decision making” by prohibiting abortions based on the reason a patient seeks the abortion,” they wrote.
Under Proposition 139 as made part of the constitution, an abortion restriction must not interfere with a woman’s right to decide to have an abortion and any restrictions on pre-viability abortion can only be enacted to improve or maintain the health of the mother based on clinical standards.
The other challenged laws similarly don’t pass constitutional muster, Mayes said.
“This is not to say, however, that the Legislature could never legislate on the subjects addressed by these laws in a way that could satisfy constitutional scrutiny,” according to the attorney general’s filing, “But for present purposes, the challenged laws as currently written must fall as a matter of law.”
But Gould wrote that the doctors’ effort to permanently block enforcement of the laws fails because they sweep in both pre-viability and post-viability abortions.
Post viability abortions – generally after about 24 weeks gestation - are viewed differently under Proposition 139. After viability, they’re only legal to preserve the “life or health” of the woman.
“The plaintiffs in this case seek to strike down all of these statutes in all of their applications,” Gould wrote. “The court should not go along with this brazen attempt to displace the will of Arizona voters.”
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