Both sides claim victory as Arizona fetal personhood lawsuit dismissed

A legal challenge against an Arizona law that gives fetuses rights has been dropped, putting the law back on the books despite an overwhelming majority of voters who agreed last year to make abortion a constitutional right in the Grand Canyon State. 

Whether it is ever enforced, or even can be legally because of that election, remains to be seen. 

On Tuesday, U.S. District Court Judge Douglas Rayes dismissed the multi-year lawsuit and dissolved a previous order blocking the fetal personhood provision from ever being enforced. Rayes’ order came after both sides involved in the litigation said that the passage of Proposition 139, which enshrined abortion in the state constitution, made their disagreement moot. 

“The legal landscape regarding abortion care under the United States and Arizona Constitutions has shifted throughout the pendency of this matter,” reads the joint stipulation of dismissal.

A look back at the legal back and forth

Four years ago, the Republican-controlled legislature passed a law banning abortions performed because of a fetus’ genetic abnormality. Providers found in violation of that mandate faced a class 6 felony, which carries with it a prison sentence between four months and two years. 

That same 2021 law also ascribed all the rights of an Arizonan citizen to an “unborn child” from conception onward. But the fetal personhood provision, which abortion advocates warned would outlaw virtually all abortions, has never been in effect, as Rayes swiftly issued an order blocking it on the grounds that it conflicted with an existing personhood definition already in state law. 

But Tuesday’s decision toppled that order, making the personhood provision enforceable, at least in theory. 

Arizona Attorney General Kris Mayes, who would be in charge of enforcing the 2021 law, has vowed never to take any abortion provider to court. And an executive order from Democratic Governor Katie Hobbs centralized the prosecutorial authority for abortion law violations in Mayes’ office, preventing any of the state’s 15 county attorneys from enforcing the law.  

The litigation around the fetal abnormality abortion ban has been more fraught. Just months after being signed by then-Gov. Doug Ducey, Rayes blocked the law under the auspices of Roe v. Wade. But less than a year later, the U.S. Supreme Court overturned the federal right to abortion in Dobbs v. Jackson Women’s Health Organization in 2022 and also allowed the genetic abnormality ban to go into effect. 

A bid by reproductive rights groups to revive the injunction was rejected, and, since 2023, it continues to restrict how abortion providers can care for their patients, even as Mayes has promised never to take them to court over it. 

Last year, 62% of Arizona voters cast their ballots in favor of amending the state constitution to include abortion as a guaranteed right. But that didn’t automatically nullify the fetal abnormality abortion ban, its fetal personhood provision or the dozens of other anti-abortion laws that still remain in state law. 

There are only two paths to striking down those laws: via legislative repeal or court challenges. And, so far, neither path has borne any success. The GOP majority isn’t inclined to alienate its pro-life base and reproductive rights groups have been hesitant to embark on the costly court strategy. 

Who “won”? And is fetal personhood now the law? 

Both abortion advocates and proponents of the 2021 law touted the dismissal as a victory. Civia Tamarkin, the president of the National Council of Jewish Women Arizona, which helped lead the challenge against the law, attributed the dismissal to the passage of Prop. 139. 

“This dismissal is because of the constitutional amendment that now makes this lawsuit unnecessary,” she said in a written statement. “The people of Arizona have spoken loudly and clearly last November: decisions about pregnancy must remain with individuals, not politicians.”

Tamarkin told the Arizona Mirror that the lawsuit was a “stopgap” measure meant to delay the law’s effective date until Arizonans had a chance to weigh in on the legality of the procedure. Now that abortion is a fundamental right, she said, the legal challenge isn’t needed anymore because Prop. 139 has rendered the law unconstitutional at the state level. 

The federal lawsuit alleged that the 2021 law violated the Due Process clause of the U.S. Constitution’s 14th Amendment because it was too vague for providers to comply with. Abortion rights groups argued in court that providers could potentially infer the reasoning behind an abortion during the initial consultation, when ultrasounds are administered.

And while the fetal abnormality abortion ban may still need a direct legal challenge to remove it from Arizona law, Tamarkin said her organization believes the fetal personhood provision is as good as dead in light of Prop. 139. 

“We don’t believe that it would be enforced against a provider because the amendment guarantees access to abortion,” she said. “Implicit in that is that, not only can a patient be guaranteed access, but that a provider can present those services to the patient. It just seems implicit and obvious.”  

Prop. 139 explicitly protects the rights of both women and health care providers to seek and perform abortions, and it bars the state from adopting, enforcing or passing any policy that punishes abortion providers.

But supporters of the 2021 law disagree. An attorney for Alliance Defending Freedom, the Scottsdale-based Christian legal advocacy organization that represented GOP legislative leadership in the court challenges against the law when Mayes declined to defend it, said in its final filing in the case that the law can — and should — be enforced. 

Republican Senate President Warren Petersen, who is mounting a bid to challenge Mayes in 2026, echoed that stance in an emailed statement. 

“The plaintiffs voluntarily dismissed their own case, which is a victory for us. The lawsuit is over. The law remains valid and enforceable,” he said. 

Richie Taylor, a spokesman for Mayes, acknowledged that the dismissal means the law remains in place and unfrozen, but said the Democrat believes it’s invalid because of the right afforded by Prop. 139.

“Although the laws are still currently on the books after the stipulated dismissal, as previous public filings in the case have indicated, Attorney General Mayes continues to believe both the Interpretation Policy and Reason Ban laws are unconstitutional,” Taylor said, using the monikers given to the fetal personhood provision and the genetic abnormality ban to differentiate the two in legal filings. 

Last-ditch attempt to extend the lawsuit killed by judge

Rayes rejected a bid to keep the legal challenge alive, and he declined to consider the question raised by Alliance Defending Freedom attorneys about who can decide whether the 2021 law is unconstitutional. In a supplemental briefing filed the same day the joint agreement to dismiss the lawsuit was submitted, Kevin Theriot, senior counsel for the legal organization, argued that Prop. 139 should have no bearing on the case. 

“The new state constitutional amendment is irrelevant to Plaintiffs’ federal unconstitutional claims,” he wrote. “This case is a federal lawsuit before a federal judge alleging federal constitutional claims.” 

Because the opponents of the 2021 law based their legal challenge on the argument that it violated the U.S. Constitution, the passage of Prop. 139 shouldn’t affect the lawsuit’s outcome or Rayes’ final determination, Theriot argued. Instead, the only way for the 2021 law to be invalidated by Prop. 139 is via a lawsuit initiated at the state level. To date, no such lawsuit challenging the law’s continued existence has been filed. 

“Arizona’s state constitutional amendment protecting abortion doesn’t affect the federal vagueness claims,” Theriot wrote. “And the amendment doesn’t prohibit enforcing the challenged laws unless and until a state court determines that there is no ‘compelling state interest’ for the laws. Indeed, the amendment doesn’t repeal any Arizona abortion laws, all of which remained in effect after the passage of the amendment.”

It’s unclear why Alliance Defending Freedom was attempting to continue the legal challenge. In his brief, Theriot urged Rayes to declare that the accusations of vagueness made against the fetal abnormality abortion ban and the fetal personhood provision were unfounded. 

If the case had survived the dismissal agreement, it’s possible a petition could have landed at the U.S. Supreme Court. But Rayes shot that down by approving the joint dismissal instead, and making no reference to the extra filing — which Tamarkin said was filed days after the legal team for Alliance Defending Freedom had already signed onto the dismissal, in an apparent and confusing reversal of the organization’s agreement to end the legal challenge. 

What’s next?

Both the fetal abnormality abortion ban and the fetal personhood law remain in effect, and while, for now, Democratic leadership guarantees neither will ever be used against a provider, the future is uncertain. 

And reproductive rights groups continue to be silent on what their next steps might be. 

A spokeswoman for the Arizona branch of the American Civil Liberties Union, which helped challenge the 2021 law in court, celebrated the news of the dismissal but did not respond to follow-up questions on whether the organization plans to take it to court over conflicts with Prop. 139. 

Tamarkin said a state-level challenge over constitutionality would first need to identify people who are being negatively impacted by the law, and added that the National Council of Jewish Women Arizona is still figuring out its future legal strategy. 

“Any specific challenges in the light of the state constitution, would be made by other plaintiffs,” she said. “We just got this stipulation granted on Monday. What any next legal steps may be have not yet been determined.”