By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — Attorneys for top Republican lawmakers told federal appellate judges Monday they should deny a bid to block enforcement of a ban on abortions due to genetic defects because the doctors who filed suit have not shown there is any “credible threat” they would be prosecuted.

The proof cited by an attorney for Senate President Warren Petersen and House Speaker Ben Toma is the decision earlier this year by Gov. Katie Hobbs to strip the state’s 15 county attorneys of their ability to bring criminal charges against doctors for violating any abortion laws and giving that to Attorney General Kris Mayes. More to the point, Denise Harle said Mayes, in turn, has said she won’t prosecute any abortion cases.

But some of the judges appeared unconvinced the statements of two elected officials about their intent is enough to ensure doctors are in no danger of winding up in court.

It starts, said Judge Andrew Hurwitz, with the question of whether Hobbs even has the authority to limit what elected county attorneys can do. That has never been litigated.

Even if she does, he noted there is a seven-year statute of limitations on prosecutions. And that means there could be someone else as governor — and attorney general — after 2026 who could reach back and bring charges for activities in 2023.

And finally, Hurwitz said, the law also has a private right of action, allowing the husband of a woman who has such an abortion to file his own lawsuit against a doctor, making the refusal of Hobbs and Mayes to bring their own charges legally irrelevant.

If that becomes the majority decision, the appellate court will send the case back to a trial judge to reconsider his refusal earlier this year to block enforcement of the law against abortions in cases of genetic defects which, for the moment, is now in effect.

There also is a complicating factor.

The Arizona Supreme Court is set to consider arguments in December about whether the decision by the U.S. Supreme Court to overturn Roe v. Wade reinstates a territorial-era ban on all abortions except to save the life of the mother. And if that is the conclusion of the state’s high court, even Jessica Sklarsky of the Center for Reproductive Rights, who is representing the doctors, conceded that makes the question of the legality of the law at issue here moot.

The 2021 measure makes it a Class 6 felony, with a one-year prison term, to terminate a pregnancy if the woman is seeking the procedure solely because of a fetal genetic defect.

It was initially defended by then-Attorney General Mark Brnovich.

“The Legislature sought to protect the disability community from discriminatory abortions, including Down-syndrome-selective abortions, and send an unambiguous message that children with genetic abnormalities, whether born or unborn, are equal in dignity and value to their peers without genetic abnormalities, whether born or unborn,” he said when the law was challenged by doctors who perform abortions.

U.S. District Court Judge Douglas Rayes had blocked enforcement, citing the historic 1973 Supreme Court ruling which said that women have a constitutional right to terminate a pregnancy. But he reversed himself after last year’s decision to overturn Roe, saying that eliminated any constitutional protections for abortion and for doctors to perform them, leaving states free to enact their own rules.

But Skarsky told the appellate judges on Monday that still leaves doctors at risk of being prosecuted under what she called a “vague” law that precluded them from counseling patients who come to them seeking care — and possibly an abortion.

Among the issues are situations where a fetal genetic defect may be one reason a woman seeks to terminate a pregnancy but is not the sole reason. And that, she said, puts doctors at risk of winding up facing not just criminal penalties but also civil fines and possible loss of their license to practice medicine.

“A litigant need not bet the farm or pursue their collective activities at their peril in order to receive judicial review,” Skarsky told the judges.

Harle, however, told the appellate judges there is no such imminent threat that would allow the doctors to seek federal court intervention to block enforcement. And she said it comes down to the actions of Hobbs and Mayes.

Hurwitz, however, wanted to know exactly where in court records is there any disavowal by Mayes of an intent to prosecute doctors.

“I checked her web site this morning,” Harle responded.

That left Hurwitz unimpressed, saying he’s still looking for something he and his colleagues can cite.

“An express disavowal is not required,” Harle responded. And she said it is irrelevant that Hobbs and Mayes may be gone after 2026 and replaced by abortion foes, saying any threat a doctor might be prosecuted after that is “too speculative.”

Hurwitz, however, pointed out not only did the Legislature approve the ban on such abortions and it was signed by then-Gov. Doug Ducey, but that Petersen and Toma are now in court, represented by Harle and the anti-abortion Alliance Defending Freedom, seeking to allow the law to be enforced.

“Isn’t that enough to show that there is a credible — not a certain — but a credible threat of enforcement?” Hurwitz said.

No, argued Harle.

But Justice Roopali Desai said it would appear that the doctors do have standing to challenge the law.

“They’re saying, ‘We would provide these services, or at least some services but for this law that very seriously threatens our liberty interests,’” Desai said. “There’s criminal prosecutions, there’s fines.”

Harle, however, said the only way doctors can seek relief in court is if they say they actually intend to terminate pregnancies knowing that the sole reason the woman wants the abortion is a fetal genetic defect. Anything else, she said, remains legal.

Desai said it’s not that black and white, saying it’s not crystal clear what the law permits or prohibits.

“What they’re saying is, ‘We’ve curtailed our medical practices because we are unclear what, in fact, violates the many different statutes that comprise the reason scheme,’” she said, meaning the reason a woman wants an abortion. And the result, Desai said, is doctors say they are “over-complying” with what they think the law requires and are not providing certain services they would otherwise provide.

Desai also said Rayes may have gotten it wrong when he said the doctors lost their right to sue when the constitutional right of abortion was overturned last year. She said just the threat of someone facing prosecution under a vague law could itself be considered a constitutional violation.

Skarsky said even if Hobbs and Mayes have disavowed any intent to bring criminal charges — and even if they can remove authority from county attorneys — that still doesn’t end threats to doctors.

She pointed out the law contains provisions for both the state Department of Health Services and the Arizona Medical Board to enforce the provisions, regardless of what the governor and attorney general decide, and regardless of whether they can usurp the authority of county attorneys.

“So there is is a very real threat from those entities that they will take action against physicians, even putting the county attorneys aside,” Skarsky said.

The judges did not say when they will rule.