By Howard Fischer
Capitol Media Services
PHOENIX -- Acting under the banner of protecting disability rights, the Republican-controlled legislature on Thursday voted along party lines to impose a new restriction on a woman's right to terminate a pregnancy by making it a crime to abort a fetus because of a fetal genetic defect.
SB 1457, which now goes to Gov. Doug Ducey, says any medical professional who performs or aids an abortion in those cases can be sentenced to up to a year in state prison. Ducey has not said whether he will sign or veto the measure.
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 chld the same rights, privileges and immunities available to anyone else.
"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,'' said Sen. Nancy Barto, R-Phoenix, the sponsor of SB 1457.
"What this bill is about is about giving a child the right to live,'' said Sen. Warren Petersen, R-Gilbert. And he pointed out that Arizona already has laws against discriminating against those with disabilities.
"If we take actions to protect those with disabilities outside the womb, we should also protect them from discrimination inside the womb,'' Petersen said.
But Rep. Rosanna Gabaldon, D-Green Valley, said those claims ring hollow.
"This bill is an attempt by anti-abortion groups to co-opt the mantle of disability rights,'' she said. And Rep. Kelli Butler, D-Paradise Valley, said the measure is not being backed by any organization that lobbies on behalf of the disabled.
In many ways, the arguments by some of the supporters confirmed that the measure has less to do with disability than is a way for those who are opposed to abortion in all forms to find ways to chip away at 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.
"Abortion is not health care,'' said Sen. Paul Boyer, R-Glendale. "Abortion takes the life of an innocent child every single time.''
And Rep. Jacqueline Parker, R-Mesa, whose grandfather was an obstetrician, said she sees nothing wrong with criminalizing abortion.
"A doctor who intentionally kills a patient should be charged with a felony,'' she said.
Less clear is whether the measure is constitutional.
In the years since Roe v. Wade, the justices have allowed states to impose some restrictions on the procedure. In general, though, these have been limited to questions of protecting the life of the mother.
Petersen 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 month 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.
Thursday's vote came despite opposition from several medical associations who urged lawmakers not to criminalize the doctor-patient relationship. But Barto said those groups don't represent all doctors.
Two doctors in the legislature, however, said the measure would create problems.
Rep. Randy Friese, D-Tucson, said there needs to be trust and communication between a doctor and a patient.
"This bill will diminish both things,'' he said. Friese said it could cause patients to wonder whether the advice a doctor is giving is based on her best interests or whether the doctor fears the possibility of criminal charges for taking certain action.
Rep. Amish Shah, D-Phoenix, said it's even more complicated than that.
He noted that the measure was amended at the request of Rep. Regina Cook, R-Kingman, and Sen. Tyler Pace, R-Mesa, to ensure that a woman was not forced to carry and give birth to a fetus that clearly would not live. As approved, the measure allows doctors to perform abortions without fear of prosecution in cases where there is a "lethal fetal condition,'' meaning that, with a reasonable certainty, the child with die within three months after birth.
"Do you really believe we know that?'' he asked colleagues about having to make such a judgment call with the risk of a prison term. "We're not God, we're doctors.''
Sen. Kirsten Engel, D-Tucson, openly worried about the language declaring that a fetus has the same rights as "other persons, citizens and residents of this state.''
"This provision will open up the potential for criminal liability, prosecutions for murder, manslaughter, dangerous crimes against children, liability for wrongful death to any person responsible for a woman's miscarriage,'' she said. And Engel said that could be true even if the person responsible, perhaps the driver of another vehicle, did not know the woman was pregnant.
"The woman herself may not even know she's pregnant because, remember, an unborn child is the offspring of human beings from conception to birth,'' she said, quoting from what's already in state law.
Barton said those fears are misplaced.
She pointed out that the verbiage on the rights of an unborn child has a caveat, making them "subject only to the Constitution of the United States and decisional interpretations thereof by the United States Supreme Court.'' And Barto said that, at least for the moment, those rulings do not recognize a fetus as a person.
Several women in the legislature who spoke against the measure chided proponents for having the state make decisions for them.
"What a person does with their body, what a person does to their body, is between them and their loved one,'' said Sen. Jamescita Peshlakai, D-Cameron. She said what this measure does is akin to telling men they should be circumcised.
"This is gender discrimination,'' Peshlakai said.
Rep. Bret Roberts, R-Maricopa, had a different take on the issue.
"Men will never be equal to women because men can't carry or give birth to new life,'' he said. "I don't know why a woman would want to be equal in that regard.''
At Pace's request, the measure also was altered to create a carve-out for in-vitro fertilization, a situation in which multiple eggs are fertilized and may even be implanted, with physicians then doing what Engel described as "selective reduction'' of embryos to maximize the chances of survival of other implanted embryos. More to the point, she said IVF also routinely involves doing genetic testing on embryos prior to implantation.
The result, she said, is those wealthy enough to afford IVF will retain the legal right to terminate embryos where there are genetic defects. But a doctor who aborts a fetus for those same genetic defects would be subject to a felony.
Governor To Rule on Arizona Abortion Bill
