PHOENIX — A federal judge will decide whether a provision in a 2021 law could be used to 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.
Skarsky, who represents abortion doctors and the American Civil Liberties Union, argued that the law 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 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 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 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.