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Abortion advocates appeal rejected injunction of 2021 fetal abnormality abortion ban

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Abortion advocates appeal rejected injunction of 2021 fetal abnormality abortion ban

Sep 12, 2023 | 2:39 pm ET
By Gloria Rebecca Gomez
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Abortion advocates appeal rejected injunction of 2021 fetal abnormality abortion ban
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Photo by iStock / Getty Images Plus

A panel of federal judges on Monday heard arguments in the case to block a 2021 law that criminalizes doctors who perform abortions of fetuses with genetic abnormalities. 

The ban was previously put on hold by an injunction shortly after it went into effect two years ago, but the U.S. Supreme Court later ruled to allow its enforcement, just days after striking down the constitutional right to abortion in Dobbs v. Jackson Women’s Health Organization. And a bid to revive that injunction from reproductive rights groups last year was defeated when U.S. District Court Judge Douglas Rayes declined to block the law, reasoning that the high court’s decision in Dobbs had nullified the arguments against it. 

A key argument from the local abortion provider and reproductive rights groups who appealed Rayes’ ruling is that the law is unconstitutionally vague. At the time of its injunction in 2021, then-Attorney General Mark Brnovich argued that providers could operate on a ‘don’t ask, don’t tell’ policy, but opponents rebutted that such an interpretation didn’t cover what would happen if a provider guesses the patient’s motive from sonograms or blood tests. 

Initially, Rayes sided with reproductive rights groups and blocked the law under the auspices of Roe v. Wade, but the second injunction request failed to convince him in a legal landscape changed by Dobbs

Abortion Advocates: abortion may no longer be protected, but that doesn’t disqualify our claim

Attorney Jessica Sklarsky urged a trio of 9th Circuit Court of Appeals judges on Monday to find that Rayes’ ruling was flawed. Sklarsky, with the Center for Reproductive Rights, said Rayes had erred when he based his dismissal on the fact that access to abortions is no longer a constitutionally protected right. 

“Vague laws violate the due process rights of those they govern, regardless of whether the underlying conduct is constitutionally protected,” Skylarsky said. 

She also refuted another of Rayes’ points that the challenge isn’t valid because no harm has yet been felt by abortion providers. The law punishes doctors who violate its provisions with a class 6 felony and a revoked license, and others who help the patient finance the abortion could face a class 3 felony. 

Doctors have been overly cautious with the patients they take on, potentially declining cases that may not violate the 2021 law and experiencing economic losses as a result, Sklarsky said. Even when the law has not yet been exercised against a specific doctor, it has been affecting the behavior of providers. 

“Plaintiffs would like to be able to provide as much care as they believe permitted under the scheme, but they can’t because they don’t know what is legal,” Skylarsky said. “The district court already determined when looking at the statute that plaintiffs would indeed be chilled from providing care whenever a patient’s motive might be ambiguous or there is any circumstantial evidence that to an outside observer might indicate had a prohibitive motive.”

Judge Andrew Hurwitz questioned whether the appeal would be rendered moot if a separate appeal to the Arizona Supreme Court results in a near-total abortion ban from 1864 being declared the law of the land. The 1864 law prohibits all abortions except in cases where the patient is facing imminent danger of death. That case is set to hold oral arguments on Dec. 12. 

Skylarsky conceded that the case may nullify the appeal of the genetic abnormality ban, but said that preventing further injury to doctors in the meantime is still significant. 

Abortion opponents: there’s no standing to challenge the 2021 law

While the 2021 law was initially defended by Brnovich, current Attorney General Kris Mayes, a Democrat and vocal reproductive rights proponent, refused to back the law in court. Instead, Senate President Warren Petersen and House Speaker Ben Toma took on the role. The two voted to pass the law two years ago and Petersen co-sponsored it. Representing them is Alliance Defending Freedom, a Scottsdale-based conservative legal firm which is also heading the effort to revive the 1864 near-total abortion ban. 

ADF attorney Denise Harle told the judges that Rayes was correct when he dismissed the injunction request. No evidence had been presented of an intent by any state or local leaders to enforce the law, she said. 

“Plaintiff’s most imminent allegation, so far, of a credible threat of enforcement is that, three years from now, in the year 2026, some unknown individual may run for Arizona attorney general, might be elected and might then take a different view of the law. But more is required,” she said. “The injury has to be certainly impending, otherwise it’s too speculative and there is not a justiciable case.” 

Hurwitz seemed unconvinced by Harle’s argument, grilling her on her certainty that no enforcement threat exists. While he allowed that Mayes is unlikely to prosecute doctors, he pressed her for evidence that none of the 15 county attorneys would seek to pursue a case against an abortion provider. On top of that, the law includes a private cause of action, allowing the married father or, if the patient is a minor, the maternal grandparent of the fetus to sue on its behalf. 

But Harle remained steadfast in her assertion that speculation doesn’t reach the threshold of valid legal injury. 

“The theoretical possibility of an injury sometime in the future is too conjectural when it’s not imminent,” she said. 

Harle also urged the court to dismiss the argument from doctors that the ban negatively affects their behavior and impacts the cases they take on. The law is very clear, Harle said, and it should have no effect on their conduct unless they plan to violate its provisions by performing an abortion solely because of a genetic abnormality in the fetus. 

Hurwitz pressed her on that claim, presenting a hypothetical of a woman who tells her provider that she’s seeking an abortion due to both economic insecurity and because of a genetic abnormality. In that case, Harle responded, it would be perfectly legal to perform an abortion because the genetic abnormality was not the only reason for the procedure. 

Challenging the 2021 ban due to the doctor’s flawed interpretation of it would open the floodgates to anyone who misunderstands any law, Harle warned the judges. 

“The mere existence of a law is not sufficient for a direct injury,” she said. “What plaintiffs’ perspective would mean is that virtually anyone could look at a law and say ‘I’m not sure what that means, I’m going to do something or not do something and that would be enough for a federal court to weigh in.’” 

What’s next?

The judges didn’t set a date for their decision, and until they do, litigation over the 2021 law is on hold in Rayes’ court. The genetic abnormality ban, known as the “Reasons Regulations” is just one part of the law, which also includes a fetal personhood assertion, ascribing all the rights and privileges of a citizen onto fetuses. That provision was also previously held back by an injunction due to vagueness and because it conflicts with the state’s current personhood definition

The law is still in play, however, and on the radar of anti-abortion legal firm Alliance Defending Freedom.