By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — Two doctors who perform abortions and Planned Parenthood Arizona filed suit Tuesday to get a court to declare that the state’s 15-week limit on abortions is unconstitutional and unenforceable.

The lawsuit argues Proposition 139, approved last month by 61% of voters, bars the state from adopting or enforcing any laws that denies, restricts or interferes with the fundamental right of abortion prior to fetal viability. That is considered somewhere between 22 and 24 weeks.

Attorneys for Eric Reuss, Paul Isaacson and Planned Parenthood acknowledge the constitutional amendment does have an exception allowing for state intervention in cases of a “compelling state interest.” But they argue that has a two part-test.

First, they said any regulations must be adopted for the limited purpose of "improving or maintaining the health of an individual seeking abortion care.'' And, second, any laws adopted under Prop 139 cannot "infringe on that individual's autonomous decision making.''

A prohibition on abortions beyond 15 weeks, they said, clearly does not meet that standard.

“The ban deprives plaintiffs’ patients of their fundamental right to abortion under the Arizona Constitution, causing them to suffer significant constitutional, physical, psychological, and other harms,” the lawsuit states.

What makes the lawsuit critical is Proposition 139 itself does not automatically void the law and the penalties against performing abortions beyond 15 weeks. Both Planned Parenthood and Isaacson have said they will not resume abortions beyond that point until there is a clear ruling.

Now the question is who, if anyone, will defend the law.

Attorney General Kris Mayes, already has stipulated her office agrees the 15-week ban is unconstitutional under the terms of Proposition 139. That is crucial as the legal papers name the state of Arizona as a defendant. It is her job to defend challenges to Arizona law.

That document also says her office won’t take any actions against any individual accused of violating the law while the case is being litigated. Even if there is a ruling allowing the 15-week law to remain in effect, Mayes won’t pursue charges for at least 30 days to allow for appeals.

That doesn’t mean there will be no challenges to the litigation. Arizona law specifically allows the Legislature to intervene any time there is a challenge to the legality of any state statute — precisely what is happening here.

“We will pursue every legal option available to protect the sanctity of life and the health of the mother and the baby,” said Senate President Warren Petersen. But the Gilbert Republican, questioned about whether that means defending the law, would say only that he is “looking into every option right now.”

Questions to Cathi Herrod, president of the anti-abortion Center for Arizona Policy, yielded a similar response.

“No decision has been made on any attempt to intervene in the lawsuit,” she said. “That will take further analysis and consideration.”

Herrod, who also is an attorney, already is sketching out reasons she believes banning abortions beyond 15 weeks fits within that definition of “compelling state interest.”

“An abortion after 15 weeks increases the risk of a woman having significant complications, including infection, heavy bleeding, and injury to the uterus,” she said.

Beyond that, she said there are other issues that could be considered within the right of the state to have a 15-week limit, including what she said is the ability to feel the pain of an abortion.

The lawyers who are suing to void that 15-week law, however, seek to frame the issue in a different way: the right of Arizonans to make “one of the most personal intimate decisions a person can make about their body, their health, and their life.”

That, by itself, may not be enough to convince a court to preemptively block enforcement of the law. So the attorneys are arguing the plaintiffs themselves, all of whom perform abortions, have a legitimate right to contest it.

It starts with the fact that the law spells out that any doctor who intentionally or knowingly violates that 15-week law is guilty of a Class 6 felony. That carries a presumptive sentence of one year in state prison.

Criminal liability aside, state law also allows the Arizona Medical Board to conduct its own independent investigations to determine if a physician has engaged in “unprofessional conduct,” something that includes violating any federal or state law and, specifically, committing a felony. The board then has the power to suspend or revoke a doctor’s license and impose penalties of up to $10,000 per violation.

“The ban penalizes health care providers who assist their patients ... forcing them to stop providing the critical care their patients seek in accordance with their best medical judgment under the threat of criminal prosecution, severe civil sanctions, and revocation of their medical licenses,” the lawsuit says.
The plaintiffs, in prepared statements, detailed their own reasons for filing suit.

“I believe that health care decisions should be made in the exam room, between a patient and their doctor, not dictated by political agendas,” said Isaacson.

“The constitutional amendment voters approved last month made it clear that Arizonans value the right to access safe, compassionate care, including abortion,” he continued. “Yet, the 15-week ban forces us to withhold essential care from patients, even when their health or future is at risk.”

Dr. Jill Gibson, chief medical officer of Planned Parenthood Arizona, said she has first-hand knowledge of how abortion bans and restrictions “force people to carry forced pregnancies, seek to self-manage their abortion when they would have preferred to access care within the health care system, or bear the financial burden of traveling hundreds or thousands of miles for care.”

Nothing in the new lawsuit, however, deals with the post-Proposition 139 legality of a host of other state laws and restrictions on abortion that also remain on the books.

Some of these are procedural, like a 24-hour waiting period after a woman is examined and informed about the procedure before a pregnancy can be terminated. There also are requirements for an ultrasound and for state licensing of abortion clinics.

But there are other bans.

One bars a doctor from terminating a pregnancy if he or she knows the woman is seeking the procedure “solely because of a genetic abnormality of the child.” Another bars abortions sought “based on the sex or race of the child or the race of a parent of that child.”

And Arizona also has a separate statute requiring the consent of a parent or a court for a minor to get an abortion. Even Mayes has said there is no clear answer to whether that survives Proposition 139, saying that “probably will be litigated.”

Rebecca Chan, a staff attorney for the American Civil Liberties Union, one of the group of lawyers who filed the new lawsuit, called it “the first step” towards fulfilling what was promised to voters when they put the right to abortion into the Arizona Constitution with Proposition 139.