By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — A trial judge has swatted down efforts by two top Republican lawmakers to quash a bid by Arizona doctors to overturn restrictions on the right of women to terminate a pregnancy.

In an extensive ruling made public Tuesday, Maricopa County Superior Court Judge Greg Como rejected arguments by House Speaker Steve Montenegro and Senate President Warren Petersen, who are defending the restrictions, that the challengers must first prove the laws are unconstitutional just to get their day in court to make their case.

“In fact, the opposite is true here,” Como wrote. “Intervenors have the burden of proving that the challenged laws are constitutional.”

That, he said, is particularly true in this case where the voters exercised their right to put a provision into the Arizona Constitution last November with Proposition 139, declaring that “every individual has a fundamental right to abortion.”

“Because the right to abortion is fundamental, any restrictions on that right are presumptively invalid,’’ the judge said. “Thus, the burden is on the government (here, the intervenors) to demonstrate that the challenged laws are constitutional.”

The ruling clears the way for the two abortion doctors and the Arizona Medical Association to pursue their claim the ballot measure means the state can no longer enforce an existing law requiring a 24-hour waiting period before terminating a pregnancy with two separate visits.

Also hanging in the balance is a ban on the use of telemedicine for abortion. That ban forbids doctors from prescribing pills for a medication abortion without having personally seen the patient.

Finally there is a law that makes it a crime for doctors to perform an abortion if they know the woman is seeking it solely because of a fetal genetic defect.
Como’s ruling does not mean those restrictions are going away. But it makes it clear that, at least based on the pleadings of attorneys for the Center for Reproductive Rights on behalf of the doctors, they are entitled to present their arguments and get a legal ruling on the challenged laws.

All that is now set for November.

Central to the case is the scope of Proposition 139, approved by a 3-2 margin in November.

At issue specifically are provisions in the measure put into the Arizona Constitution that “fundamental right to abortion.”

It says the state can adopt and enforce laws that interfere with that right in cases of pre-viability abortions — generally considered between 22 and 24 weeks — only if “justified by a compelling state interest that is achieved by the least restrictive means.” But it narrows the scope of what that includes to mean it is only about the health of the pregnant woman, and it does not interfere with her “autonomous decision making.”

Attorneys for the doctors say the three challenged laws that have been on the books for year — the waiting period, the ban on telemedicine, and the restrictions based on the reason of the pregnant woman — all falter because of the new constitutional standard.

Under normal circumstances, it would be up to Attorney General Kris Mayes to defend the validity of any laws. But Mayes said she agrees with the doctors, leading Montenegro and Petersen to intervene.

What they sought to do is keep the case from ever going to trial and forcing them to defend the challenged laws. So they went to Como and argued the doctors lack legal standing to sue.

Crucial to that is their claim the doctors are in no danger of being prosecuted.
That starts with a 2023 executive order by Gov. Katie Hobbs declaring that Mayes — and only Mayes — has the authority to prosecute violations of abortion laws. Mayes, in turn, said she will never bring such charges against doctors or patients.

Without a credible threat of prosecution, the GOP lawmakers argued, there’s nothing for Como to decide.

The judge, however, said such a threat is unnecessary.

“Plaintiffs detail numerous examples of how compliance with the challenged laws are currently requiring them to violate their medical judgment, perform unnecessary medical procedures, and provide biased and inaccurate information to their patients,” Como wrote.

For example, he said, one of the provisions in the requirement for two separate trips to the doctor requires them to perform Rhesus (Rh) blood testing, something the doctors have said is not medically necessary during the early weeks of pregnancy. That, the judge said, fits into the category of requiring doctors to perform unnecessary procedure.

Then there’s the argument against a requirement to make two trips to a doctor, at least 24 hours apart, something that the doctors said “will be insurmountable” for some patients, particularly those with limited resources.

The same is true, Como said, about the ban on telemedicine to prescribe abortion pills. The doctors say that “delays access to care,” particularly for those who may live hundreds of miles from an abortion facility.

There was no immediate response from the GOP lawmakers. But Como’s ruling cheered attorney Caroline Sacerdote of the Center for Reproductive Rights who argued the case.

“Nothing warrants throwing this case out,” she said in prepared comments. “Arizonans overwhelmingly voted to protect their fundamental right to abortion last year, but they are still waiting for that right to become a reality.”
What will not be affected by whatever Como rules are existing restrictions on post-viability abortions.

For example, Arizona law says doctors performing the procedure in that case must use a technique “most likely to preserve the life and health of the fetus.” And it requires there be a second doctor present to provide immediate medical care to a fetus born alive.

Proposition 139 also does contain some limits on what laws can and cannot be enforced. But these laws — which Center for Reproductive Rights is not currently challenging — are not as absolute as limits on terminating a pregnancy prior to viability.

In these cases, the initiative overrides any laws that deny, restrict or interfere with abortions after viability to the extent that they interfere with the “good faith judgment of a treating health care professional” and “necessary to protect the life or physical or mental health of the pregnant individual.”

There was no immediate explanation of the decision not to challenge those post-viability restrictions.