PHOENIX — A federal judge has slapped back a bid by Attorney General Mark Brnovich to let the state start enforcing new abortion restrictions despite his order concluding they are likely unconstitutional.
In a brief order, U.S. District Court Judge Douglas Rayes said the attorney general misread his Sept. 28 order telling the state it cannot make felons out of doctors who perform abortions for women due to a genetic fetal defect.
The judge said Brnovich is emphasizing his findings that, strictly speaking, a woman possibly could still find a doctor to perform the abortion. But Rayes said the attorney general is ignoring the rest of the order where he found the law “likely would make it substantially more difficult for women seeking to terminate their pre-viability pregnancies because of a genetic fetal abnormality to receive constitutionally protected care.”
Rayes also said Brnovich is misstating the law about when a judge should stay his own order and allow a law he has found unconstitutional to take effect
He said that the attorney general, at best, is claiming there is “some possibility” of irreparable injury to the state because it cannot enforce a law approved by the legislature. But the judge said for him to let the state start enforcing the law despite his order Brnovich would first have show a probability of irreparable injury, something he has not done.
In fact, Rayes said, if anyone is likely to suffer an injury it would be the women who would be denied their constitutional right to terminate a pregnancy.
All this means that, at least for the time being, the new abortion restriction remains unenforceable.
Brnovich press aide Katie Conner said Tuesday her agency “will continue to use the tools in our toolbox to defend the law as it is.” And that, she said, means pursuing an appeal.
The measure, approved earlier this year 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 solely is a genetic abnormality. The law carries a penalty of up to a year in prison for doctors and others; there is no penalty on the woman.
All that comes against the backdrop of a line of Supreme Court rulings, dating from the historic 1973 decision of Roe v. Wade, which bars states from forbidding a woman from terminating her pregnancy prior to viability. That is the point at which a fetus can live outside the womb, presumed to be somewhere between 22 and 24 weeks.
The Center for Reproductive Rights, abortion providers and others sued, charging that the law ran afoul of those precedents. They argued that a doctor cannot perform an abortion once he or she knows the woman's reason, effectively becoming an absolute ban on the procedure.
In his ruling, Rayes did agree with Brnovich on one point.
He said the law was not an absolute bar to a woman carrying a child with a genetic defect from getting an abortion. That’s because a woman, denied an abortion after telling a doctor her reason, is free to seek out another provider and keep her reason secret, or lie about it.
But Rayes, in his new ruling, said that work-around not enough to allow the state to keep enforcing the law while it seeks an appeal. He said it still amounted to a burden on the constitutional rights of women to terminate a pregnancy.
At the same time, the judge brushed aside the claim by Brnovich that the state, unable to enforce its laws, was itself suffering an irreparable harm.
“Defendants’ argument overstates the injury to Arizona and minimizes the harms to plaintiffs and their patients,” Rayes wrote, calling any harm to the state “abstract.”
“Although a state suffers a form of irreparable injury whenever it is enjoined from implementing its laws, that injury alone does not support a stay when balanced against a stay would impose on others,” he said.
Rayes also took a swat at Brnovich for asking permission to enforce only part of what the judge had enjoined the state from enforcing.
He pointed out that his order last month also barred Arizona from requiring doctors to sign an affidavit stating that the abortion is not being performed because of a genetic abnormality and that the doctor has no knowledge that is the reason.
It also required doctors to tell patients that Arizona prohibits abortion because of a genetic abnormality as well as for doctors to file certain reports with the state health department.
“Defendants’ argument about the harms to a state whenever it is enjoined from enforcing a democratically enacted law is undermined by their decision to appeal only a portion of the court's preliminary injunction order,” Rayes wrote. “Evidently, this harm is tolerable as it pertains to other enjoined portions of the act.”
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