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Supreme Court abortion ruling could influence Arizona cases

An American flag waves in front of the Supreme Court on Capitol Hill in Washington, Monday, June 29, 2020. (AP Photo/Patrick Semansky)

An American flag waves in front of the Supreme Court on Capitol Hill in Washington, Monday, June 29, 2020. (AP Photo/Patrick Semansky)

A new ruling Monday by the U.S. Supreme Court could aid legal efforts here to void a host of Arizona laws and regulations governing abortion.

In a 5-4 ruling the justices said Louisiana has no legal right to prohibit doctors from terminating pregnancies unless they also have admitting rights at nearby hospitals. The majority concluded that the statute placed a substantial obstacle in the path of women seeking an abortion.

More to the point, Justice Stephen Breyer, writing for himself and three other justices, said the requirement served no legitimate purpose in protecting the health of women. Chief Justice John Roberts joined in the conclusion with a separate opinion saying the court was bound by previous similar rulings.

On one hand, the challenges filed in federal court here in Arizona deal with different restrictions imposed over multiple years by the Arizona Legislature. These range from who can perform what abortion service to requiring women to make two trips to a clinic and forbidding doctors from prescribing abortion medications via telemedicine.

But attorney Catalina Vergara representing Planned Parenthood said the Arizona lawsuit is about more than the individual regulations. She wants a federal judge here to look not just at the individual hurdles being placed in the path of women but what Planned Parenthood says is the cumulative effect.

That cumulative effect, the lawsuit says, resulted in the closure of Planned Parenthood clinics in Yuma, Goodyear, Prescott Valley and Chandler. And the Flagstaff clinic can provide abortion services only one day a week.

What makes all that significant is the Arizona lawsuit cites the first time the U.S. Supreme Court ruled on the issue in 2016 when the justices said restrictions need to be judged on whether they create an “undue burden” on women.

Alice Clapman, a staff attorney for Planned Parenthood, said that means the courts look at the statutes “to determine if the benefits of the restriction outweigh the burdens.”

What makes Monday’s Supreme Court ruling so significant is that attorneys for Louisiana, while acknowledging the 2016 decision, were hoping to use it to get a different ruling from the high court this time around. That would have opened the door not just to uphold the existing Arizona laws but potentially pave the way for new ones.

But the high court majority concluded there was nothing wrong with the precedent set in 2016 and agreed it should remain.

That precedent, however, may hang by a thread.

Clarence Thomas

Clarence Thomas

“Today, a majority of the court perpetuates its ill-founded abortion jurisprudence by enjoining a perfectly legitimate state law and doing so without jurisdiction,” wrote Justice Clarence Thomas, in his dissent.

He acknowledged earlier court rulings affirming a woman’s rights to have an abortion.

“But those decisions created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text,” Thomas wrote. “Our abortion precedents are grievously wrong and should be overruled.”

That risk of overturning decades of precedent did not go unnoticed in a statement put out Monday by Arizona abortion providers who pointed out in a prepared statement that, technically speaking, there are still laws on the books that make it a crime to perform or get an abortion — or even advertises for the procedure. The only thing that keeps it from being enforced is the historic 1973 U.S. Supreme Court ruling in Roe v. Wade which declared that women have a constitutional right to terminate a pregnancy.

The abortion providers said the risk of a future Supreme Court ruling voiding that 1973 decision underscores the need for Arizona lawmakers to repeal those currently-unenforced laws on the books.

Cathi Herrod

Cathi Herrod

Monday’s ruling drew criticism from Cathi Herrod, whose Center for Arizona Policy has been a prime force behind the various abortion restrictions here.

“Somehow providing for women’s health and safety remains a ‘substantial obstacle’ or ‘undue burden’ on a woman’s right to an abortion,” she said. “The tragedy of abortion continues in our land.”

But Herrod would not concede that Monday’s ruling dooms the Arizona restrictions.

“It will take some time to analyze the legal issues and implications,” she told Capitol Media Services.

In filing the Arizona lawsuit, Planned Parenthood is urging the federal court here to consider the implications.

“When states restrict abortion under the guide of women’s health they have to actually produce evidence that the restrictions enhance public safety,” Clapman said in filing the suit. She said several of the challenged Arizona statutes are “sham public safety laws where there’s no evidence of benefit.”

“The court is going to take a hard look at that evidence and really ask the state to justify these restrictions when they’re imposing a burden,” Clapman said.

Herrod, however, has argued the statutes at issue all are justified and justifiable.

“Abortion is different than other medical procedures,” she said in opposition to the lawsuit. “It involves taking of a life, it involves risks to the woman’s health.”

The Arizona lawsuit surrounds three basic areas.

First are what are known as “physician-only” rules, spelling out that abortions, both medical and surgical, as well as abortion-related procedures can be performed only by someone who is a doctor. Foes say there are many of these chores that can be done by specially trained nurses.

Challengers also say there is no medical reason to require a woman to visit a clinic and have an ultrasound at least 24 hours ahead of terminating a pregnancy for a consult with the physician.

The lawsuit also says Arizona not only allows but encourages the use of telemedicine, allowing medical advice to be given and prescriptions to be written after a video conference with the patients. But the lone exception is when an abortion is involved.

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