By Howard Fischer
Capitol Media Services
PHOENIX -- Rejecting fears by doctors they could get arrested, Gov. Doug Ducey on Tuesday signed a new law restricting who can get an abortion.
The measure, which takes effect later this year makes it a Class 6 felony to terminate a pregnancy if the woman is seeking the procedure because of a fetal genetic defect. The verbiage is so broad that it also could result in similar charges -- and potentially a year in state prison -- for nurses and others who assist, potentially including clerical staff.
Ducey praised the measure.
"There's immeasurable value in every single life, regardless of genetic makeup,'' the governor, who has been a foe of abortion, said in a prepared statement
"We will continue to prioritize protecting life in our preborn children,'' he continued. "This legislation goes a long way in protecting real human lives.''
In signing the bill, Arizona becomes one of only a handful of states with such a restriction.
It also potentially opens the state up to litigation. While a federal appeals court has upheld a similar law in Ohio, the U.S. Supreme Court has never decided whether this kind of blanket rule runs afoul of its precedents dating back to 1973 limiting the right of states to interfere with a woman's decision to terminate a pregnancy prior to a fetus becoming viable.
Ducey's decision comes less than a week after a coalition of medical groups asked him to veto it because it "severely compromises the physician-patient relationship.''
"The bill will discourage communication and affect care between physicians and patients by creating a fear of criminal prosecution,'' wrote Dr. Miriam Anand, president of the Arizona Medical Association. She said that relationship is based on open and honest communication which both serves the health and safety of the patient and ensures the doctor can make the most informed medical judgment.
"This should not be compromised,'' Anand wrote on behalf of not only her organization but also the Arizona section of American College of Obstetricians and Gynecologists, the Arizona Osteopathic Medical Association and the Arizona Academy of Family Physicians.
But proponents of the measure inserted language they say protects the integrity and ethics of the medical profession "by preventing doctors from becoming witting participants in genetic-abnormality-selective abortions." The legislature finds that an industry that is associated with the view that some lives or potential lives are worth more than others is less likely to earn or retain the public's trust.
In signing the legislation, Ducey made no mention of the objection of the doctors.
The new law also puts in place a prohibition against women being able to get by mail or courier the otherwise legal drugs that are used to perform a medication abortion. Proponents argued that such abortions are less safe than surgical abortions and should be performed only under the supervision of a doctor.
Other provisions:
- Require that the remains from a surgical abortion either be buried or cremated;
- Prohibit abortions at any hospital run by an educational institution from performing abortions unless necessary to save the life of the mother;
- Bar the use of public money to be used on any research that involves fetal remains;
- Allow the father of the unborn child to sue for damages if such an abortion is performed, a right that goes to the mother's parents if she is a minor.
The new law also contains language spelling out for the first time in Arizona that all laws -- not just about abortion -- must be interpreted to acknowledge that "an unborn child (has) at every stage of development, all rights, privileges and immunities available to other persons, citizens and residents of the state.'' But Sen. Nancy Barto, R-Phoenix, who sponsored the bill, insisted during debate on the measure that this does not confer legal "personhood'' on a fetus.
She pointed out that clause is subject to the U.S. Constitution and how that is interpreted by the U.S. Supreme Court. And, at least to date, the justices have declined to narrow the exceptions of Roe v. Wade and its successive cases which conclude that women have the constitutional right to terminate a pregnancy prior to the viability of a fetus outside the womb.
To get the necessary votes, however, Barto had to agree to certain changes.
The most significant came amid concerns by Rep. Regina Cobb, R-Kingman and Sen. Tyler Pace, R-Mesa, that women would be forced to carry and deliver a baby whose fetal defects were so severe that it would not have a realistic chance of survival outside the womb. So Cobb had the measure limited to preclude abortions when the defects were survivable, such as Down's syndrome.
That language was further tweaked to specifically allow doctors to perform abortions without fear of prosecution in cases where there was a "lethal fetal condition,'' meaning that, with reasonably certainty, the child will die within three months after birth.
Pace also insisted on language that spelled out none of this applies in cases of in vitro fertilization where a doctor may implant multiple fertilized eggs but then do "selective reduction'' to give the greatest chance of survival to one that remains.
The measure contains other provisions which make it a Class 3 felony, with a presumptive term of 3 1/2 years in prison, to threaten, coerce or intimidate a woman to have an abortion in the case of a fetus with a genetic defect. The same penalty applies to anyone who solicits or accepts money to finance such an abortion.
This isn't Arizona's first foray into the legally gray area of telling women and their doctors that certain abortions are off limits.
A 2011 law also makes it a crime to terminate a pregnancy due to the race or gender of the fetus or the race of a parent. That came after then-Rep. Steve Montenegro, R-Litchfield Park, said the rates of abortions for black women were higher than that for other groups.
Montenegro also cited evidence, much of it from Asian countries, that women there were far more likely to abort a female child than a male.
But courts threw out challenges by the NAACP and the National Asian Pacific Women's Forum because they could not cite a single instance of a women being been denied an abortion for those reasons.
The law remains on the books. And Planned Parenthood Arizona says it will not perform an abortion if a women says that race or gender is the reason.
Other Republican legislators had proposed even stricter abortion restrictions.
Sen. Wendy Rogers, R-Flagstaff, got the Senate Appropriations Committee to approve a measure outlawing abortion at the point a fetal heartbeat could be heard, as early as five weeks into pregnancy.
But Senate President Karen Fann, R-Prescott, refused to let that come to the floor for a full vote.
Fann said there was consensus, even among supporters, that the measure would almost certainly have run up against all the Supreme Court precedents guaranteeing a right to abortion. And the Senate president also said there were not the votes for the proposal.
Rep. Walt Blackman, R-Snowflake, had an even more far-reaching measure to allow not just doctors but the women who have an abortion to be charged with homicide. House Speaker Rusty Bowers, R-Mesa, did not assign it to a committee for a hearing.
