By Howard Fischer
Capitol Media Services
PHOENIX -- A federal judge late Tuesday blocked Arizona from making criminals out of doctors who perform abortions knowing the woman's reason is a genetic fetal defect.
In a 30-page ruling, Judge Douglas Rayes said the law imposes a undue burden on women. And he said that outweighs any interest the state claims in promoting life.
In fact, Rayes slapped the state for making such a claim in this case.
"The mechanism Arizona has chosen is not designed to (ITALICS) encourage (ROMAN) women to choose childbirth,'' the judge wrote. "It is designed to (ITALICS) thwart (ROMAN them from making any other choice.''
Tuesday's order is not the last word. It still gives attorneys for the state a chance to argue, after a full-blown trial, that the measure is constitutional.
But in issuing the injunction, Rayes said he already has concluded that the challenges are likely to succeed in convincing him that the law cannot stand.
The measure, approved earlier this year by the Republican-controlled legislature, makes it a crime for medical providers to terminate a fetus if they know that the reason the woman is seeking the procedure solely is a genetic abnormality. The law carries a penalty of up to a year in prison for doctors and others; there is no penalty on the woman.
Rayes said there are several flaws with the statute.
It starts with the definition of a "genetic abnormality'' which the judge called "squishy.''
More problematic, the judge said, is that it makes it a crime for doctors to perform an abortion if the woman's sole reason is that genetic defect.
"At what point can a doctor be deemed to 'know' or 'believe' what is in the mid of a patient?'' Rayes wrote. And then there's the question of what happens if that defect is just one reason a woman seeks an abortion.
"The decision to terminate a pregnancy is a complex one, and often is motivated by a variety of consideration, some of which are inextricably intertwined with the detection of a fetal genetic abnormality,'' he said.
"For example, patient sometimes report that they are terminating a pregnancy because they lack the financial, emotional, family, or community support to raise a child with special and sometimes challenging needs,'' Rayes continued. "If a doctor accepts money to finance such an abortion ... can that doctor face felony prosecution or a civil lawsuit?''
Rayes acknowledged that, strictly speaking, the law is not a ban on such procedures. That's because a woman, denied an abortion after telling a doctor her reason, is free to seek out another provider and keep her reason secret, or lie about it.
But the judge said the Constitution prohibits states from imposing an "undue burden on the woman's ultimate choice.''
In this case, he said, doctors are required to inform a woman, ahead of any procedure, that they cannot perform it if the reason is a fetal genetic abnormality. And that, Rayes said, will make it less likely that a woman who wants to terminate her pregnancy knows that she has the right to seek out another medical provider.
"Very few Arizona providers offer abortion at the later stages of pregnancy when certain fetal conditions are likely to be detected,'' Rayes said.
"Women are already choosing from a more limited pool of providers,'' he continued, saying that the law "will only make that pool smaller.''
"Moreover, such women are racing against a clock because Arizona law prohibits post-viability abortions and viability usually occurs between 23 and 24 weeks of gestation,'' the judge said. "Fetal genetic abnormalities might not be diagnosed until a woman nears that mark, and the time it takes her to do the sort of doctor shopping suggested by (the state) could push her past viability.''
Cathi Herrod, president of the anti-abortion Center for Arizona Policy, criticized the decision putting the law on hold.
"Meanwhile, preborn babies with genetic conditions like Down syndrome will lack the protection needed against discriminatory abortions,'' she said in a prepared statement.
