By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — A federal appeals court gave the go-ahead Monday for Arizona doctors to challenge a state law banning abortions sought because of fetal genetic defects.

In a 23-page ruling the three-judge panel of the 9th Circuit Court of Appeals said the doctors have legal standing because there is a “credible threat” they could end up being prosecuted for violating the 2021 law which they contend is unconstitutionally vague.

Judge Ronald Gould acknowledged Attorney General Kris Mayes has said she does not intend to enforce this — or, for that matter, pretty much any — abortion restriction.

He said, though, there is at least one county attorney who has said he intends to enforce “restrictive abortion laws.” And this measure makes it a Class 6 felony, with a one-year prison term, to terminate a pregnancy if the woman is seeking the procedure solely because of a fetal genetic defect.

But Gould noted that’s not the only threat to doctors.

It also allows the father of an unborn child who is married to the mother to file a civil suit against them on behalf of that child for violations of the law, even if the mother gave the go-ahead. A similar right exists for a parent in the case of an unmarried mother.

He said the law allows state regulatory agencies to revoke a doctor’s license.

And the court also said the doctors already are suffering economic loses because they have to comply with laws that forbid them from providing medical services they would otherwise offer.

Monday’s ruling does not resolve the issue of whether the law itself is constitutional. In fact, the court said it was not expressing any opinion on the merits of the claims.

“We conclude only that the plaintiffs have standing to pursue them,” Gould wrote, something denied by a trial judge.

Unless overturned, the decision paves the way for a trial, with the statute being defended by the anti-abortion Alliance Defending Freedom.

“No child, born or unborn, should be discriminated against because of her race, sex, or disability,” said Erin Hawley, a vice president of the organization in a prepared statement. “Children diagnosed with Down syndrome and other conditions have the same right to live as everyone else.”

She also took a slap at the economic loss argument presented by doctors.

“The abortion industry is using this case to push for and profit from abortions targeting children for their genetic makeup, physical appearance, and other inherent immutable traits,” Hawley said.

The 2021 measure was pushed by then-Sen. Nancy Barto. The Phoenix Republican argued the bill would protect women.

“What we’re doing here by not addressing this issue is we’re hurting the most vulnerable among us and making a judgment that they are unworthy to live,” she said.

Proponents specifically said they were trying to keep abortions from being performed simply because a fetus was diagnosed with something like Down syndrome.

Several doctors who perform abortions sued, along with the Arizona Medical Association and several groups that support abortion rights.

U.S. District Court Judge Douglas Rayes initially blocked enforcement, citing the Supreme Court decision in Roe v. Wade, which said women have a constitutional right to abortion. He said the new law imposed an undue burden on women.

But he reversed himself after the nation’s high court last year overturned that 1973 ruling.

“Plaintiffs do not have a constitutional right to perform elective abortions and their patients no longer have the constitutional right to receive them,” Rayes wrote in dismissing their claims. That sent the case to the 9th Circuit.

In reviving the case, the appellate judges do not address that question of whether women have a right to abortion. Instead, they focus solely on the law’s potential harm to the doctors.

“They provide sophisticated testing and fetal screening for genetic conditions,” Gould wrote.

“The physicians discuss the results of these tests with their patients and present options, including abortion.”

He also said prior to the 2021 law they “regularly performed abortions in cases where fetuses had confirmed genetic abnormalities.”

In filing suit, the doctors said the law is vague — especially what is called the “reason regulation.” That is the part of the law that makes it a crime to terminate a pregnancy “knowing that the abortion is sought solely because of a genetic abnormality.”

Their lawyers argued they are “over-complying” with the law because it is unclear what will get them into legal trouble.

It starts with a concern that what conditions may constitute a “fetal abnormality.”

Potentially more problematic, they said, it forces a doctor to assess what role that abnormality plays in a patient’s subjective decision to get an abortion. Even Rayes acknowledged these are not simple issues.

“For example, patients sometimes report that they are terminating a pregnancy because they lack the financial, emotional, family or community support to raise a child with special and sometimes challenging needs,” he wrote.

Then there’s the question of what knowledge a doctor must have about the patient’s motives.

“At what point can a doctor be deemed to ‘know’ or ‘believe’ what is in the mind of a patient?” Rayes said.

Gould said Monday the risk of being prosecuted and sent to prison in these situations gives the doctors standing to challenge the law.

The case has been complicated by several factors.

Mark Brnovich, who was the attorney general in 2021, had defended the law as constitutional.

All that changed, however, when he was replaced in January by Mayes. She not only refused to argue for it but has said she will not bring charges against any doctor who violates this law.

And Gov. Katie Hobbs issued an order — as yet untested — stripping individual county attorneys of their ability to prosecute such cases.

That led to House Speaker Ben Toma and Senate President Warren Petersen intervening to defend the law. And the Alliance Defending Freedom, representing them, urged the appellate court to dismiss the case, saying all that means the doctors have shown no “credible threat” of being prosecuted.

Gould, however, said that’s not the case.

He pointed out Mayes has said only she would advise county attorneys that prosecuting someone under this law would violate the Arizona Constitution.

“The attorney general evidently believes that she lacks authority to bind county attorneys by her disavowal of enforcement,” Gould wrote. And he noted Yavapai County Attorney Dennis McGrane filed a motion to intervene in that fight over the 15-week law, saying he wanted to “fill the void” created by Mayes.

Then there’s the civil enforcement.

“The Arizona Department of Health Services and the Arizona Medical Board — which have the power to penalize physicians and revoke their licenses — have indicated that they comply with the law that are in effect,” Gould said. On top of that, he said, is the possibility of lawsuits by husbands or parents.

All this comes as the Arizona Supreme Court is set to hear arguments in December about whether abortions are legal through the 15th week of pregnancy. Even if the justices conclude that right exists, this law, unless voided, likely still would deny that right in cases where the procedure is sought solely due to a fetal genetic defect.

There also is an initiative drive to ask voters in 2024 to codify the right to abortion in the Arizona Constitution. And the wording of that would trump restrictions like the ones in this statute.