Courts open Arizona’s genetic-abnormality abortion ban to legal challenges

Courts open Arizona’s genetic-abnormality abortion ban to legal challenges

Abortion rights protesters chant during a Pro Choice rally at the Tucson Federal Courthouse in Tucson, Arizona on Monday, July 4, 2022. (Photo by SANDY HUFFAKER / AFP) (Photo by SANDY HUFFAKER/AFP via Getty Images)

By Renee Romo

November 2, 2023

WASHINGTON – A federal appeals court said a group of Arizona physicians can challenge the state’s ban on abortions for genetic abnormalities, a law the doctors say could land them in jail because it is impermissibly vague.

The ruling Monday by a three-judge panel of the 9th U.S. Circuit Court of Appeals reverses a lower court that had dismissed the suit, saying the physicians did not have standing to sue after the U.S. Supreme Court overturned the right to an abortion that was recognized in Roe v. Wade.

But the circuit court said the physicians can sue. It agreed that the doctors have been harmed by the law, the so-called Reason Regulations, because they are “over-complying with the laws because it is unclear what conduct falls within the laws’ grasp.”

“Plaintiffs declared an intention to perform abortions up to the legal limits of the Reason Regulations but … because those limits are unclear, many abortions they would otherwise perform could be deemed violations of the statute,” Circuit Judge Ronald Gould wrote.

Gould said the doctors have standing to sue “based on their economic interest in providing medical services,” services that have been curtailed by the law.

“We are glad that the 9th Circuit has recognized that we deserve to have our day in court. To say otherwise would have been an egregious failure of the justice system,” Jessica Sklarsky, senior staff attorney at the Center for Reproductive Rights, said in a statement.

The center represented the physicians, the Arizona Medical Association, the Arizona chapter of the National Organization for Women and the National Council of Jewish Women in the suit to block the 2021 law.

But Erin Hawley of the Alliance Defending Freedom said in a statement she looks forward to defending the law when it returns to district court.

“The abortion industry is using this case to push for and profit from abortions targeting children for their genetic makeup, physical appearance, and other inherent immutable traits,” said Hawley, the vice president of the alliances’ Center for Life and Regulatory Practice.

Arizona is one of just eight states that ban abortions on the basis of genetic abnormality, according to the Guttmacher Institute. The law, passed in 2021, makes it a felony to perform an abortion “solely because of genetic abnormalities in the fetus or embryo.” In addition to jail time, doctors convicted under the law could lose their medical license, and could be sued for civil damages by the father in such a case.

Sklarsky said her center, along with the American Civil Liberties Union and the ACLU of Arizona, sued to block the law because it violated “the substantive due process right to abortion” that was in place at the time. Their suit said the law also violated physicians’ constitutional right to due process because it was “impermissibly vague.”

The district court granted a preliminary injunction. Then-Attorney General Mark Brnovich appealed and was rejected by the circuit court. But the U.S. Supreme Court, which had just issued its Dobbs decision, that overturned Roe, ordered the district court to reconsider the case in light of its ruling in Dobbs.

This time, the district court let the law take effect, saying that without Roe, the plaintiffs did not have standing to block the law.

Arizona Attorney General Kris Mayes, who took office in January, has declined to enforce the law or defend it in court, but Republican leaders in the Arizona Legislature stepped in to defend it on its second trip to the 9th Circuit.

After oral arguments in September, Sklarsky said that “abortion providers are being treated differently from all other litigants and effectively are having the courthouse doors slammed in their faces.” Monday’s ruling gives them the chance to make their case again.

Both Sklarsky and Hawley said they look forward to taking the case back to district court to argue the merits. But Dianne Post, attorney and legislative coordinator for Arizona NOW, said the case never should have had to go to the appellate court in the first place.

“The decision from the district judge was so obviously incorrect that we never should have had to go,” Post said Tuesday.

“I can’t make predictions because our courts are so destroyed by the previous administration,” Post said. “Facts and truth don’t seem to matter in court any more than they matter in politics.”


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