PHOENIX (AP) — A lawyer for several Arizona abortion providers urged a federal judge Wednesday to block a new state law that would allow prosecutors to charge doctors who knowingly terminate a pregnancy solely because the fetus has a genetic abnormality such as Down syndrome.
The law, set to take effect on Wednesday, is so vague that it would dissuade doctors from performing an abortion anytime there's an indication that the fetus might have a genetic problem for fear of criminal prosecution, argued Emily Nestler, senior counsel at the Center for Reproductive Rights.
“There are women in Arizona whose access to abortion will be eliminated altogether,” Nestler said. “So the burden is more than substantial. It's absolute for those patients.”
A lawyer for the state argued the law won't block any woman from getting an abortion, though she might have to refuse to tell her doctor why she wants to terminate her pregnancy.
“It sends a message to the medical community that the state believes strongly that physicians should not be performing intentionally discriminatory abortions,” said Michael Catlett, a deputy solicitor general in Republican Attorney General Mark Brnovich's office.
Catlett argues the law upholds the state's interest in protecting the disability community from discrimination, preventing doctors from coercing women to abort fetuses believed to have genetic problems and upholding the integrity of the medical profession.
Emboldened by the U.S. Supreme Court’s turn to the right during former President Donald Trump's administration, Republican-controlled legislatures around the country have embraced efforts to further restrict or outright ban abortion. States enacted more than 90 new restrictions on abortion this year, the most in decades, according to the Guttmacher Institute, which supports abortion rights.
The high court in May signaled its willingness to reconsider Roe v. Wade, the 1973 ruling establishing a nationwide right to abortion before a fetus could survive outside a mother’s womb, generally around 24 weeks. And this month, the justices declined to block a Texas law that bans abortions once medical professionals can detect cardiac activity, which is usually around six weeks into a pregnancy — before some people know they’re pregnant.
In the Arizona case, U.S. District Judge Douglas Rayes, who was appointed by former President Barack Obama, did not say which way he would rule. He sharply grilled both attorneys for more than two hours.
He focused in particular on inconsistencies in the law. It allows criminal charges for doctors who perform an abortion based “solely” on a genetic abnormality, but also requires the physician to sign a form saying the abortion was not sought “because of” genetics — omitting the word solely.
It also requires doctors to tell women that Arizona law “prohibits abortion of the unborn child's sex or race or because of a genetic abnormality” — which Catlett acknowledged was an “inartful” description of what the law actually does. Reyes said that would lead women to believe it's illegal for them to get an abortion because of a genetic abnormality, when the law only applies to doctors and specifically blocks charges against women seeking an abortion.
“Are you saying the woman should talk to a lawyer as well as her doctor so she can understand what her doctor is telling her?” Rayes asked Catlett.
Nestler, the abortion-rights attorney, said women have a First Amendment right to talk frankly with their doctor but would be prevented by the law. And she argued the law is unclear about when doctors could face criminal charges. Nestler asked if a doctor be charged, for example, if he performs an abortion on a woman who says she can't afford to raise a child with a disability.
The Arizona lawsuit challenges key provisions of SB1457, which was signed by Republican Gov. Doug Ducey in April after it passed the GOP-controlled Legislature in party-line votes.
The measure allows prosecutors to seek felony charges against doctors who provide abortions when they know it’s solely because of a genetic abnormality in the fetus. Anyone who helps raise money or pay for such an abortion also could be charged. Doctors also can lose their medical license, and any medical or mental health professionals who fail to report such an abortion could be fined $10,000.
The lawsuit also challenges a “personhood” provision that says the state will interpret all laws to confer the rights of people on unborn children, subject to the Constitution and U.S. Supreme Court rulings. Nestler said it's entirely unclear what that means and how it would be applied across the state's entire legal apparatus.
A three-judge federal appeals court panel has put on hold a sweeping 2019 Missouri law that includes some of the same provisions as Arizona's, including the ban on abortions based on genetic abnormalities. That ruling is now being considered by the entire 8th U.S. Circuit Court of Appeals.
This story has been updated to correct the spelling of Emily Nestler's last name.