By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — A multiyear effort to kill a controversial abortion measure is dead.

U.S. District Court Judge Douglas Rayes signed an order this week dismissing the lawsuit filed by a Phoenix obstetrician and gynecologist and others who challenged a 2021 statute that makes it illegal to perform an abortion because of fetal defects. That means the law that could send doctors and staffers to prison for a year remains on the books.

Less clear is whether any doctor is likely to be charged.

Attorney General Kris Mayes has promised that she will never prosecute physicians who perform abortions. She also contends that, based on an order from Gov. Katie Hobbs, she is the only one in the state with the power to even consider such charges.

An aide to Mayes said she believes what is in the 2021 law is unconstitutional.

But Mayes will not always be the attorney general. Even if she wins reelection to another four-year in 2026 — she already has two high-profile Republicans lined up to try to unseat her — she cannot serve more than two terms.

But Civia Tamarkin, president of the National Council of Jewish Women Arizona, said she and others who filed suit believe the law is unenforceable. And the key, she said, is the decision by voters in November to enshrine a right to abortion in the Arizona Constitution.

“The dismissal is because of the constitutional amendment that now makes this lawsuit unnecessary,” Tamarkin said.

That’s also the position of Gail Deady, an attorney for Center for Reproductive Rights, who cited Proposition 139 when explaining the decision to drop the federal court lawsuit.

“Arizonans made it clear last year: They do not want politicians meddling with their fundamental right to abortion,” she said in a prepared statement.

“These baseless restrictions have no place under Arizona’s new constitutional amendment.”

But an attorney from the Alliance Defending Freedom, representing Republican legislative leaders who have defended the 2021 law, said he believes it remains legally defensible.

The 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. It was pushed by then-Sen. Nancy Barto, R-Phoenix.
“We must stand for those at risk, the children with Down’s syndrome and other genetic abnormalities, through no fault of their own, who are being snuffed out in Arizona and throughout our country, and need to stand up for their life,” she said at the time. She had the backing of Gilbert Republican Warren Petersen, who is now Senate president.

“What this bill is about is about giving a child the right to live,” he said at the time. And he pointed out Arizona already has laws against discriminating against those with disabilities.
“If we take actions to protect those with disabilities outside the womb, we should also protect them from discrimination inside the womb,” Petersen said.
But there is more in the law, including a provision that requires all Arizona laws be interpreted to give all fertilized eggs, embryos and fetuses the same “rights, privileges and immunities available to all other persons.”

The first lawsuit filed in 2021 argued the law is vague, leaving medical professionals unclear about what actions could land them in prison.

U.S. District Court Judge Douglas Rayes initially blocked the law, saying the law imposes an undue burden on women and outweighs any interest the state claims in promoting life. He also said it places doctors in a no-win situation where they are being asked to determine if the only reason a woman is seeking an abortion is because of a fetal defect, versus that being just one factor.

But all that fell apart in 2022 when the U.S. Supreme Court overturned Roe v. Wade, the historic 1973 ruling that found women have a constitutional right to terminate a pregnancy for any reason — or no reason. Rayes then reversed his ruling, saying that meant doctors no longer had a constitutional right to perform elective abortions and their patients did not have a constitutional right to receive them.

That sent challengers back to court with new arguments about why the law is flawed. It even took a 2023 ruling by the 9th Circuit Court of Appeals to say that doctors have the legal right to contest the law because there is a “credible threat” they could end up being prosecuted for violating the 2021 law.

Since then there have been a series of legal briefs and court hearings, but with no final resolution.

That led to the new decision by the plaintiffs to simply drop the case in the wake of voter approval of Proposition 139.

That, however, is not the position of the Alliance Defending Freedom, which has been defending the law on behalf of Petersen and now-former House Speaker Ben Toma. In fact, attorney Kevin Theriot actually asked Rayes to rule that the law is valid even with approval of Proposition 139.

The judge, in dismissing the case, ignored that request. But Theriot, in a prepared statement, said he still believes the law is legally defensible.

“Arizona’s life-affirming law ensures that babies, including those with Down syndrome, are not targeted because of their genetic makeup,” he said.

“Common sense says that this law deserves everyone’s support,” Theriot said, accusing “the abortion industry” of “targeting children for their genetics, physical appearance, and other inherent immutable traits.”

Whatever the legal fate of the law on abortions due to fetal defects, there are still other parallel restrictions that remain legal in Arizona. They make it a crime for a doctor to terminate a pregnancy if they know that the reason a woman is seeking the procedure is the race or gender of the child.

There are currently no challenges to either law.