Update to Arizona’s ‘Personhood’ Law Would Criminalize All Forms of Abortion (excerpt):
Arizona passed the personhood law in April 2021. Abortion providers sued to block it last August, arguing that it was unconstitutionally vague because it did not make clear what conduct, if any, it would prohibit.
Following the Dobbs ruling, the providers filed an emergency motion to enjoin the personhood law, saying it could subject providers to prosecution for aggravated assault, child endangerment or other crimes – though they noted that the state’s homicide statute carves out abortion [for now.]
The state countered in a filing that the provision’s effect would have to be interpreted case by case by courts, making its exact effect “anyone’s guess.”
Well thanks Kate Sawyer for making the plaintiff’s argument that the law is unconstitutionally vague because it did not make clear what conduct, if any, it would prohibit.
[Judge] Rayes expressed concern about that position at Friday’s hearing.
“How, in defendants’ view, are plaintiffs supposed to comply with the law if it is anyone’s guess what the law in Arizona is?” he asked Sawyer.
Told ya so. Easy call. Arizona law granting human rights to fetuses blocked by federal judge:
Acknowledging that the law on abortion in Arizona is “murky,” a federal judge on Monday issued an order halting enforcement of a 2021 statute that grants human rights to fetuses.
U.S. District Judge Douglas Rayes’ 17-page order says that the law is too vague and risks arbitrary enforcement, siding with abortion rights advocates who filed their challenge one day after the U.S. Supreme Court overturned the landmark Roe v. Wade case in June.
Rayes cited the state’s own argument defending the so-called “personhood” law in his decision, noting that lawyers for Republican Attorney General Mark Brnovich conceded in court filings that it was “anyone’s guess” how the law applies.
Kate Sawyer may want to consider other, more suitable employment. Lawyering is not working out for her.
“And that is the problem,” he wrote. “When the punitive and regulatory weight of the entire Arizona code is involved, plaintiffs should not have to guess at whether their conduct is on the right or the wrong side of the law.”
Often called a “personhood” or “interpretation” provision, the law passed last year and signed by Republican Gov. Doug Ducey gave fetuses at each stage of development “all rights, privileges and immunities available to other persons, citizens and residents of this state.”
Abortion rights groups argued that could lead to arbitrary enforcement and expose doctors to criminal penalties for crimes like child abuse if they perform abortions. In oral arguments Friday, attorneys for the state said it was Brnovich’s opinion those charges would not apply, but that the request to block the law was premature.
Attorneys for two doctors in Phoenix and Scottsdale, who are plaintiffs in the case and who feared criminal penalties if they provided abortions, applauded the decision.
“The court made the right decision today by blocking this law from being used to create an unthinkably extreme abortion ban,” Jessica Sklarsky, senior staff attorney at the Center for Reproductive Rights, said in a statement. “The Supreme Court’s catastrophic decision overturning Roe v. Wade has unleashed chaos on the ground, leaving Arizona residents scrambling to figure out if they can get the abortion care they need. People should not have to live in a state of fear when accessing or providing essential healthcare.”
It was immediately unclear whether Brnovich’s office, which has defended other provisions of the 2021 law all the way to the U.S. Supreme Court, would appeal the decision.
“Today’s ruling was based on an interpretation of Arizona law that our office did not agree with, and we are carefully considering our next steps,” Brittni Thomason, spokesperson for the Attorney General’s Office, said Monday. “Our focus remains on bringing clarity to the law for Arizonans.”
Rayes’ ruling does not sort out conflicting statutes in state law about when women can obtain abortions; future court cases are likely to settle those issues.
“Doesn’t mean much,” Cathi Herrod, president of the Center for Arizona Policy, wrote on Twitter of the judge’s decision, noting her belief that a pre-statehood ban on nearly all abortions is the prevailing law. The Center for Arizona Policy is a leading anti-abortion group that earlier this year backed the conflicting law banning abortions after 15 weeks.
Rayes wrote that, even with the uncertainty in current law, the most strict of Arizona’s laws allows for abortion in some circumstances, to save the mother’s life. With those procedures still legal in Arizona, he found that an injunction was warranted to prevent future and retroactive enforcement of the law giving rights to fetuses.
“Plaintiffs should not have to operate under a shadow of uncertainty, especially when defendants [the attorney general] have been unable to provide a coherent and satisfactory explanation of what the interpretation policy does,” he wrote.