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Federal court hears lawsuit on Arizona 'Personhood Provision'

By Howard Fischer/Capitol Media Services
Published: Monday, July 11, 2022 - 12:45pm
Updated: Monday, July 11, 2022 - 6:24pm

A federal judge will decide whether a provision in a 2021 law could be used to make bring criminal charges against doctors who perform otherwise-legal abortions, including those to save the life of the mother.

Attorney Jessica Sklarsky of the Center for Reproductive Rights told Judge Douglas Rayes on Friday that Arizona has long interpreted its laws against child abuse, child endangerment and assault to not apply to legal abortions.

Last year, however, lawmakers enacted a bill that all state statutes, without exception, have to be interpreted and construed to "acknowledge, on behalf of an unborn child at every stage of development, all rights, privileges and immunities available to other persons."

What makes that a problem, she said, is that Attorney General Mark Brnovich contends the June 30 decision by the U.S. Supreme Court overturning the Roe v. Wade ruling guaranteeing a federal constitutional right to abortion now frees Arizona to immediately start enforcing a state law against it that dates to territorial days. That law outlaws all abortions except to save the life of the mother.

Sklarsky, who represents abortion doctors and the American Civil Liberties Union, argued that could free Brnovich — and any other prosecutor — to now use this "personhood" language to charge doctors performing any abortion with those other crimes.

It's even more complicated than that.

There is a 1973 injunction issued by the state Court of Appeals blocking the attorney general from enforcing what had been the 1901 law outlawing abortion.

Brnovich has said he intends to ask Pima County Superior Court, where that case originally started, to dissolve the injunction based on the U.S. Supreme Court ruling overturning Roe.

He has not yet done that. But Assistant Attorney General Kate Sawyer told Rayes that her boss believes that injunction applies only in Pima County, meaning the 1901 statute is in effect in the other 14 counties.

That acknowledgment also means that, at the very least, all pre-viability abortions remain legal in Pima County unless and until a judge lifts that injunction, something that is not a legal certainty. But Sklarsky said doctors there won't perform abortions because of the fear that they could still be prosecuted for other crimes based on the "personhood" language.

Then there's the question of whether there will be other efforts to keep abortion legal in Arizona based on other legal theories, including that there is a specific right to privacy in the state constitution.

"This much is certain: Without an injunction or some other court order preventing the interpretation policy from being used to criminalize abortion services, plaintiffs cannot and will not resume providing care in Arizona," Sklarsky told the judge.

But Sawyer, in essence, told Rayes there was nothing for him to decide. She said that the personhood language about how other laws have to be interpreted is not, in itself, a criminal law that can be enforced — or that he can enjoin.

"So what does it do?" the judge asked.

Sawyer said that the language acknowledging the personhood of unborn children simply explains how other existing statutes should be interpreted. That left the judge unsatisfied.

"I don't understand," Rayes said. "How does it help a judge or someone who's in law enforcement interpret the law?"

"There could be any number of reasons," Sawyer responded, suggesting for example a judge could use it in ruling in a probate case.

She also said if the doctors fear being prosecuted for child abuse they are free to ask a state judge to decide the scope of the law and whether the requirement that laws be interpreted to acknowledge the personhood of fertilized cells, an embryo or a fetus — there are legal distinctions — subjects them to possible criminal penalties. That suggestion drew a skeptical response from the judge.

"They can eliminate that by hiring a lawyer and going to court and filing a lawsuit for a declaratory judgment as to how that lawsuit might be applied?" Rayes asked.

"Yes, that would be the function of a state court in this instance," Sawyer responded.

But Sklarsky said it is precisely the role of federal courts to ensure that laws are sufficiently clear so that people know what they have to do to avoid violating them. And that, she said, is not the case here.

Sklarsky said there are other issues.

One is the fact that Gov. Doug Ducey has insisted that a law approved earlier this year outlawing abortions after 15 weeks will supersede any more stringent territorial-era law when it takes effect in late September. If he is correct — and even the governor acknowledged that issue is going to have to be litigated in state court — that would keep legal the vast majority of abortions that until now have been performed in Arizona.

Sklarsky said that eventuality also would require enjoining the personhood provision to ensure that would not and could not be used to make criminals out of the doctors who are performing such abortions.

What Rayes decides could plow new legal ground.

The judge noted that at least two other states, Missouri and Kansas, have similar language requiring that all statutes be interpreted to acknowledge the personhood of a child at any stage of development, including in the womb. Sklarsky acknowledged that neither has been challenged.

But she said that was because abortion law until now has been governed by Roe, making it unnecessary for someone to seek judicial intervention. Skarlsky said this will be the first case going to a federal court about the issue since the Supreme Court overturned Roe.

The judge gave no date for when he will rule.

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