Doctors could revive bid to block Arizona ban on abortions performed due to genetic abnormality

A federal appeals court has agreed to give abortion rights advocates a chance to revive their bid to block an Arizona law that makes it a felony for doctors to perform abortions on patients seeking the procedure solely because of a fetal genetic abnormality, such as Down syndrome.

In an order issued Monday, the 9th U.S. Circuit Court of Appeals sent the case back to a lower court to consider the doctors’ request for a court order blocking the law. The appeals court didn’t rule on the merits of the challenge but concluded nonetheless that the doctors had legal standing to make the request.

The three-judge panel said the doctors believe they would be targeted for prosecution, given that at least one of the state’s 15 county prosecutors intends to enforce the law, and that the doctors had shown they suffered economic losses by complying with the law.

“Even if the regulations were crystal clear, plaintiffs would still lose revenue from the abortions that they can no longer provide,” the court wrote.

The law makes it a felony punishable by four to 24 months behind bars for doctors to perform abortions if they know patients are seeking the procedure only because of a genetic abnormality in a fetus.

U.S. District Judge Douglas Rayes blocked the ban in September 2021 in a lawsuit by the three obstetrician-gynecologists who perform abortions and a physicians’ association. He concluded the statute’s criminal provisions were likely unconstitutionally vague and said it was unclear at what point in the process doctors can be deemed to be aware that a fetal genetic abnormality exists.

But the U.S. Supreme Court later threw out the order and sent the case back to Rayes, who had written his ruling before the nation’s highest court in June 2022 overturned the landmark Roe v. Wade decision that guaranteed a constitutional right to an abortion.

Rayes issued a new ruling in January, saying this time that the conduct the challengers claim to have been chilled from engaging in isn’t constitutionally protected anymore. The judge also said doctors don’t have a right to carry out elective abortions and their patients no longer have a right to receive them.

The suit is being defended by Arizona Senate President Warren Petersen and House Speaker Ben Toma, both Republicans who won court approval to participate in the case. Arizona Attorney General Kris Mayes, a Democrat who took office in January, declined to defend the abortion statutes challenged by the lawsuit because she believes they are unconstitutional, attorneys for Mayes’ office have said in court records.

Lawyers representing Petersen and Toma said the law protects people with disabilities from discriminatory abortions, and that the challengers lacked legal standing and hadn’t suffered harm from the law.

Erin Hawley, vice president of the Center for Life and regulatory practice with Alliance Defending Freedom, which is defending the law in court on behalf of Petersen and Toma, said in a statement, “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.”

It's not yet known whether Petersen and Toma will appeal the court's decision.

Attorneys for the challengers argue the law is vague over issues such as which fetal conditions are included and how doctors should assess a patient’s subjective motivations for seeking an abortion, leaving doctors guessing whether the law applies.

In a separate case that examines whether doctors can be prosecuted for performing abortions, the Arizona Supreme Court is scheduled on Dec. 12 to hear arguments over a pre-statehood law that bans the procedure in nearly all cases.

Earlier in the case, a lower court concluded abortion doctors can’t be prosecuted for performing abortions in the first 15 weeks of pregnancy because other Arizona laws passed since then allow the procedure. Arizona currently allows abortions in the first 15 weeks of pregnancy under a 2022 law.

A court blocked enforcement of the 1864 law shortly after the U.S. Supreme Court issued the Roe v. Wade decision in 1973. But after the Supreme Court overturned the decision, then-Republican Attorney General Mark Brnovich succeeded in getting a state judge in Tucson to lift that court order.

This past summer, abortion rights advocates began a push to ask Arizona voters to create a constitutional right to abortion. If proponents collect enough signatures, Arizona will become the latest state to put the question of reproductive rights directly to voters.

The proposed constitutional amendment would guarantee abortion rights until a fetus could survive outside the womb, typically around 24 weeks of pregnancy. It also would allow later abortions to save the mother’s life or to protect her physical or mental health.