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Appeals Court overturns lower court’s ruling on 2009 abortion laws

The Arizona Court of Appeals today found two 2009 abortion laws to be constitutional and scratched a lower court’s order banning them from taking effect.

The laws, passed as HB2564 and SB1175, require notarized parental consent for a minor to get an abortion, require doctors to meet patients in person 24 hours before an abortion to provide information on the procedure, allows health care workers and doctors to choose not to participate in abortions if it contradicts their religious or moral beliefs, and allows only physicians to perform abortions.

Two Democrats and a Republican comprised the appellate court panel that found that Maricopa County Superior Court Judge Donald Daughton misapplied the law in his Sept. 30, 2009, decision that halted enforcement of the statutes.

Planned Parenthood of Arizona sought to have the laws voided on the grounds they violated the Arizona Constitution’s equal protection or privacy clauses, but the court rejected that argument.

“We hold that the statutes at issue would withstand federal constitutional scrutiny, and that the Arizona Constitution – to the extent it protects abortion rights at all – offers no greater protection than the federal constitution with respect to the regulations at issue in this case,” wrote Judge Peter Swann, an appointee of former Gov. Janet Napolitano.

Bryan Howard, president and CEO of Planned Parenthood of Arizona, said attorneys for the organization will determine whether there is a basis for appeal.

He said Arizona is one of the few states to have a privacy clause in its Constitution and Planned Parenthood believed in the case it made.

“We continue to believe in the ruling of the trial court was the correct decision,” Howard said.

Deborah Sheasby, legal counsel for Center for Arizona Policy, the organization that drafted HB2564, the Abortion Consent Act, and was part of the legal team defending it, said the ruling provides insight into the court’s standards for reviewing similar statutes.

CAP will use that information in reviewing potential changes to existing laws and in drafting future legislation, Sheasby said.

“The court was very clear about the Legislature’s broad authority to regulate the medical profession to ensure the health and safety of citizens and even the state’s interest in protecting potential life in the womb,” Sheasby said.

There is also a lawsuit pending in Maricopa County Superior Court where Planned Parenthood is challenging regulations on abortion clinics and laws passed in 2011 that prohibit physician assistants from dispensing the abortion pill, RU-486, and expands the definition of abortion to include medication abortion.

“I think this decision sets that case up for a positive outcome,” Sheasby said.

Judge Richard Gama has set a hearing on whether to preliminarily stop the 2011 laws, SB1030 and HB2416, from taking effect on Aug. 22. The state has agreed to postpone their taking effect while the case is pending.

Howard said that if the Court of Appeals ruling stands, then hundreds of thousands of women outside of Maricopa and Pima counties will lose access to abortions because of the lack of physicians.

Arizona didn’t enact any significant abortion legislation for most of last decade because Napolitano always vetoed any bills that made it to her desk.

2009 was a turning point for the pro-life movement, when Gov. Jan Brewer signed the Abortion Consent Act, one of the laws that the Court of Appeals ruled on.

Sheasby said CAP hasn’t identified any new legislation yet that it will push in 2012.

Planned Parenthood has 30 days to petition the Supreme Court for an appeal.

The court has discretion whether to accept the case.

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