By Howard Fischer
Capitol Media Services
PHOENIX -- Abortion rights advocates are going to court in a bid to overturn a new law which makes it a crime to abort a fetus because of a genetic defect.
The lawsuit filed Tuesday in federal court here says it is illegal to restrict in any way the right of a woman to terminate a pregnancy. Attorney Emily Nester of the Center for Reproductive Rights said there is a long line of cases that say the government has no role in decisions made prior to a fetus being viable, that is, being able to live outside the womb.
"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 previability abortion,'' Nester wrote.
But she also said it's worse than that.
Nester said the ban on abortions for that reason is "unconstitutionally vague.'' That's because the law -- and its penalties -- apply when a medical provider is deemed to "know'' that the patient is seeking to terminate the abortion "solely because of'' a genetic defect.
"Because the ban leaves providers to guess at what actions are prohibited, they will have no choice but to err on the side of broadly denying constitutionally protected care to patients with any indication of a possible fetal anomaly, or risk running afoul of the ban's severe criminal and licensing penalties,'' she wrote.
And there's something else Nester finds problematic.
The legislation declares that a fetus has the same rights as "other persons, citizens and residents of this state.'' And the attorney said that creates problems for figuring out when those protections apply.
Nester is asking a federal judge to preclude state officials from enforcing the law when it is scheduled to take effect on Sept. 29.
"Politicians should not get to decide what an acceptable reason is for seeking an abortion,'' Nester said in a separate prepared statement. "This law is an affront to our constitutional right and our ability to make private decisions free from government intrusion.''
But Cathi Herrod, president of the anti-abortion Center for Arizona Policy, on Tuesday called the litigation "a desperate attempt to stand in the way of Arizona law protecting the preborn from discrimination.''
"We do not discriminate against people with disabilities, nor should we discriminate against them in the womb,'' Herrod said.
The law, signed by Gov. Doug Ducey, says any medical professional who performs or aids an abortion where it is sought because of a fetal abnormality can be sentenced to up to a year in state prison.
During debate, Sen. Nancy Barto, R-Phoenix, the sponsor of the measure, said the legislation is justified.
"We must stand for those at risk, the children with Down's syndrome and other genetic abnormalities, though no fault of their own, who are being snuffed out in Arizona and throughout our country, and need to stand up for their life,'' she said.
But Rep. Rosanna Gabaldon, D-Green Valley, called it "an attempt by anti-abortion groups to co-opt the mantle of disability rights.''
The litigation comes even as some states, with the support of both Ducey and Attorney General Mark Brnovich, are trying to get the U.S. Supreme Court to overturn the historic 1973 U.S.
Supreme Court decision which says women have a right to terminate a pregnancy prior to the viability of a fetus. That ruling and subsequent cases have reaffirmed that states have only a limited ability to interfere with the procedure, usually with laws about protecting maternal health.
But Sen. Warren Petersen, R-Gilbert, pointed out that five other states have similar laws. That includes Ohio where the statutes say a doctor can be punished for performing an abortion after a patient says that a fetus having Down's syndrome is part of her decision.
Earlier this year a divided federal appeals court agreed to allow that law to take effect, with the majority concluding that it furthers the state's interest in affirming that individuals with the genetic disorder "are equal in dignity and value'' with others. And the judges said that it does not impose an absolute ban on abortions.
None of these laws, however, has yet to get to the Supreme Court.
And Herrod pointed out that this law is modeled after 2011 legislation 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.
The measure also:
- Allows the husband of a woman who seeks such an abortion or the woman's parents if she is younger than 18 to sue on behalf of the unborn child;
- Outlaws the ability of women to get otherwise-legal drugs to perform an abortion through the mail or other delivery service;
- Declares that the laws of Arizona must be interpreted to give an unborn child the same rights, privileges and immunities available to anyone else.