Possible Senate Bill Would Criminalize Abortions Done After Fetal Heartbeat Detected

Apr 2, 2021

By Howard Fischer
Capitol Media Services
PHOENIX -- Conceding they are courting a lawsuit, abortion foes in the Arizona Legislature are moving to make felons out of doctors who perform abortions after there's a fetal heartbeat -- something that happens even before a woman may know she is pregnant.


And Sen. Wendy Rogers, R-Flagstaff, who is behind the move, also wants the same Class 3 felony with its presumptive 3.5 year sentence in state prison for the nurses, assistants and even clerical staff that were involved.

The move comes even though backers of HB 2140 acknowledge the measure runs afoul of a series of rulings by the U.S. Supreme Court. That includes not only the historic 1973 Roe v. Wade ruling saying states cannot outlaw abortions prior to viability but more recent decisions including one in 1992 where the justices said states cannot erect "substantial obstacles'' in the path of a woman seeking to terminate a pregnancy of a non-viable fetus, regardless of the reason.

And a 2012 Arizona law banning abortions after 20 weeks of pregnancy was struck down by federal courts, a decision left intact by the nation's high court.

But Rogers and her allies figure the legislation, approved by the Senate Appropriations Committee late Wednesday, could provide an opportunity for the Supreme Court, as currently constituted, to revisit the issue and overturn the precedents.

Separately, the state House on Thursday approved a less-sweeping -- but equally legally questionable -- measure making it a felony for anyone to perform an abortion knowing it is being sought due to a genetic abnormality of the child.

The 31-29 party-line vote on SB 1457 came after Rep. Regina Cobb, R-Kingman, added language to the Senate-passed bill she said would still allow such abortions if abnormality is "incompatible with life.''

Cobb said there is no reason to prolong a pregnancy where it is clear that the child would be unlikely to survive for any length of time after being born.

"It's not to encompass a child that is going to be a Down's syndrome that's going to live to 45 years old,'' Cobb said. With that amendment, Cobb agreed to provide the critical 31st vote in the 60-member House.

But even with that change, the heart of the bill remains: A doctor could go to prison for aborting a child with certain genetic conditions, no matter how serious.

"This is criminalizing the doctor-patient relationship that is so sacred to all Arizonans,'' said Rep. Athena Salman, D-Tempe. She also said that, in declaring a fetus has rights, lawmakers are giving the fetus more rights than the woman who is carrying it.

"That is incredibly disturbing,'' Salman said.
Rep. Melody Hernandez, D-Phoenix, said no woman should ever have to explain her decision to terminate a pregnancy.

But she agreed to explain her own decision to get an abortion two years ago, saying that was in part because she had been raped and did not know whether the rapist was the father of the fetus. Plus, Hernandez said, she did not have health insurance and "was barely making ends meet.''

Rep. Joanne Osborne, R-Buckeye, said she supports the measure, telling colleagues about her great uncle who had Down's syndrome and was autistic and yet lived to age 60.
For Rep. Walt Blackman, R-Snowflake, the issue is broader than that, decrying the "thousand Black babies that are slaughtered every day'' and placing the blame squarely on Planned Parenthood.

And Rep. Jacqueline Parker, R-Mesa, said her grandfather, who was an obstetrician, always told her that he had two patients: the mother and the unborn child.
"It is not unreasonable to charge doctors who intentionally kill one of their patients with a felony,'' said Parker, who is an attorney.

That concept of the legal status of a fetus is what is behind both bills.
SB 1457 banning abortions due to genetic disorders declares that Arizona laws give an unborn child, at every stage of development, "all rights, privilege and immunities available to other person, citizens and residents of this state.''

HB 2140 approaches it from a different angle, declaring that anyone who perform an abortion on a fetus with a detectable heartbeat "kills a human being.''
"We know that we are sacrificing innocent life unless we save innocent children when the heartbeat is heard,'' Rogers said. "There is no conscionable reason for us to continue the sacrifice of human life.''

"As obstetricians, our obligation extends to both mothers and their unborn children,'' testified Erica Kreller. "Ending the life of one of the patients entrusted to their care, especially one so vulnerable and in need of protection, should carry consequences.''
She told members of the Appropriations Committee that a heartbeat can be detected as early as five weeks into a pregnancy. And Kreller acknowledged that some women may not yet know they are pregnant.

But she said there's nothing wrong with what this legislation seeks to do.
"I think that what we're trying to do here is to protect as many babies as we can and protect the women from the after-effects of abortion,'' Kreller said, such as depression.

Marilyn Rodriguez representing Planned Parenthood Advocates of Arizona, the political and lobbying arm of the organization, told lawmakers they should consider the implications of the measure.

"You would be charging doctors who provide abortion care with a Class 3 felony,'' she said. The result, said Rodriguez, would be to force pregnant women to carry a fetus to term against their will "or to seek unsafe back-alley abortion care in desperation.''

That did not bother Sen. Kelly Townsend, R-Mesa.
"I don't think it's a good idea to legalize all those things desperate people want to do,'' she said. Anyway, Townsend said, abortion is "100% unsafe for the child.''

Steve Barclay, representing professional associations of medical and osteopathic physicians, also urged lawmakers to reconsider imposing criminal penalties on doctors. He said the bill has multiple flaws.

For example, he said, the measure does not address reasons abortions are sought for medical versus elective reasons.
"They're going to face potential criminal liability and severe civil liability ifthey make a decision to save the life of the mother and somebody second-guesses that decision later,'' Barclay said. "That could put more mothers in real danger because I think you're going to have fewer neonatologists doing their jobs in these high-risk pregnancies.''

That leaves the legal issue, with Rodriguez pointing out that the a bid by Arizona lawmakers to ban abortions at 20 weeks -- anywhere from two to four weeks before what is currently considered the point of viability -- was struck down, with the state paying $2 million in legal fees to challengers.

Rogers was unmoved.
"If we save one life, it's worth the cost,'' she said.
The move by Rogers is what amounts to a last-minute tactic by Sen. Wendy Rogers, R-Flagstaff.

Rogers couldn't get a hearing for her proposal in the Senate Committee on Health and Human Services for her original heartbeat legislation. So she arranged on Thursday night to strip it on to an unrelated bill -- one dealing with vehicle license plates -- in the Senate Appropriations Committee.