PHOENIX — Attorney General Mark Brnovich is making an emergency ditch plea to a U.S. Supreme Court justice to let Arizona immediately start enforcing its law making felons out of doctors who perform abortions in cases of fetal genetic defects.
In a 38-page legal brief, Brnovich told Justice Elena Kagan that there was no legal basis for U.S. District Court Judge Douglas Rayes to block the law while its legality is litigated. He said that even prior Supreme Court rulings which legalized abortions never concluded that there is an absolute right of a woman to terminate her pregnancy for any reason at all.
Kagan said Wednesday she wants a response from those who sued the state by this coming Tuesday, Dec. 21. At that point, she can handle it herself or refer it to the full court.
Brnovich also is relying on a claim that the unborn are entitled to the same legal protections against discrimination based on mental or physical disabilities as anyone else.
“States also have a legitimate interest in promoting life or potential life of the unborn,” he said.
But Rayes rejected similar arguments earlier this year, concluding the law imposes an undue burden on women. And he said that the way the law works outweighs any interest the state claims in promoting life.
“The mechanism Arizona has chosen is not designed to encourage women to choose childbirth,” Rayes wrote. “It is designed to thwart them from making any other choice.”
Brnovich’s petition is going to Kagan because she handles emergency appeals from the 9th Circuit Court of Appeals which last month denied his bid to stay Rayes’ ruling.
The law, approved by the Republican-controlled legislature makes it a crime for medical providers to terminate a fetus if they know that the reason the woman is seeking the procedure is solely because of a genetic abnormality. The law carries a penalty of up to a year in prison for doctors; there is no penalty for the woman.
Brnovich is hanging much of his legal argument on the fact that even Rayes acknowledged that, strictly speaking, the law is not a ban on such procedures.
That’s because there is no requirement for a woman seeking an abortion to tell the doctor the reason. If the doctor has no knowledge, then there's no crime.
And even if a woman is denied an abortion after disclosing the reason, she remains free to seek out another doctor and keep the reason a secret — or lie about it.
As such, Brnovich contends, the law is a regulation, something the Supreme Court has allowed, and not an outright ban.
Rayes, however, said it’s not that simple.
He said Arizona legislators worded the law in a way designed to keep women from exercising that option, requiring a doctor to inform patients, ahead of any procedure, they cannot perform it if the reason is a fetal genetic abnormality. And Rayes said none of that means she knows she has the right to seek out another medical provider, assuming one is available.
The attorney general’s arguments come as Republican counterparts from other states have mounted what amounts to a frontal attack on Roe v. Wade, the historic 1973 Supreme Court decision that legalized the right of abortion, and the 1992 decision of Planned Parenthood v. Casey which said states cannot impose “undue burdens” on that right.
Brnovich himself has filed a legal brief siding with his colleagues in a case out of Mississippi asking that those precedents be overturned. A decision on that could come in June.
But in this case the attorney general is not relying on — or linking his legal arguments to — that happening. He contends those precedents never addressed and do not preclude this specific Arizona law.
“The right to perform an abortion based solely on the results of genetic testing is novel, with no basis in the Constitution's text or the Nation's history and traditions,” he argued. “Neither the Constitution itself, nor Roe or Casey, nor any other of this court’s precedents establishes or supports the right to perform an abortion for eugenic or discriminatory reasons.”
And Brnovich told the justices that upholding Rayes’ ruling that a woman has a right to terminate her pregnancy based on a fetal genetic defect could have ripple effects.
“It would apply equally to decisions to abort when genetics predicts low IQ, lack of athletic prowess, or any other characteristics that the medical profession finds undesirable,” he said.
Brnovich also told the justices that they cannot rely on the earlier decisions to conclude the Arizona law is unconstitutional.
“The technology and science necessary to perform accurate testing for a genetic abnormality on a widespread basis were not yet in existence,” he said.
Brnovich also took issue with Rayes’ ruling that the statute is flawed because it makes it a crime for doctors to perform an abortion if the woman's sole reason is that genetic defect.
The judge said it’s not always that simple, with women motivated by a variety of reasons which may be intertwined with one another. For example, Rayes said, what about a woman who seeks an abortion of a fetus with genetic defects because she lacks the financial, emotional, family or community support to raise such a child.
But Brnovich said none of that means the law is unconstitutionally vague, saying the statute “is more than sufficiently clear to notify the doctors what conduct it prohibits.”
Brnovich also said that the law, if the state gets to enforce it, is likely to affect only a few women.
He said that in 2019, out of approximately 13,000 abortions reported in Arizona, only 161 women reported that their primary reason for terminating the pregnancy was due to fetal health or medical conditions. Another 30 women listed “other” on the state form, providing details which listed genetic risk or fetal abnormality.
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