A legislative panel voted February 4 to make it a crime to terminate the pregnancy of a fetus with a genetic abnormality by declaring that it has the same legal rights as anyone else.
SB 1457 would make it a Class 3 felony for a doctor to perform an abortion knowing it is being sought because of a genetic abnormality of the fetus. That carries a presumptive prison term of 3.5 years.
The measure also would outlaw the use of telemedicine for medical abortions, precluding women from getting abortion-inducing pills through the mail. It also would require that any aborted fetus be either buried or cremated and impose new restrictions on public educational institutions from counseling or referring a woman for an abortion other than to save her life.
But the key provision is about making one now-legal reason for getting an abortion a crime.
Kristin Plamondon told members of the Senate Judiciary Committee of her 10-year-old son, “who’s the fiercest basketball player in his class, who’s more alike than different.”
“And he happens to have almond-shaped eyes and an extra copy of chromosome No. 21, Down’s syndrome,” she said. “Life with Carter is simply the most amazing gift our family has been handed.”
Gianna Elms, a licensed clinical social worker, said that medical advances are being made today at a faster rate than any other time in history.
“It won’t be long before eugenics becomes popular in our society despite it having earned its negative association due to Adolph Hitler’s obsessive attempts to create a superior race,” she said.
“It won’t be long before a simple DNA analysis will be conducted as part of Planned Parenthood’s business,” Elms said. “And it will eventually fall into a normal part of the prenatal process.”
But the bigger philosophical – and now legal – issue for lawmakers revolves around the rights of the mother versus the fetus and, more to the point, exactly when life begins.
“We’ve known for a long time when life begins,” said Ron Johnson, who lobbies on behalf of the state’s Catholic bishops.
“It’s a matter of biology,” he said. “Life begins at conception,” calling the bill “an important issue of civil rights.”
Rabbi Bonnie Sharfman, however, had a different take, calling SB1457 “a discriminatory law which would enshrine one religious belief to all others,” something she said violates the federal Constitution.
“Jewish law is clear that life begins at birth, and not prior,” she told lawmakers. “Jewish law is clear that the mother’s life takes precedence over the life of an unborn child and there is no personhood until birth.”
And the Rev. Cari Jackson of the United Church of Christ said that, theologically, “when life begins is really a mystery.” She said it was not until courts started getting involved that people suggested that life begins at conception.
“To extend the same rights, privileges and immunities to a zygote, embryo or fetus the same as to a fully and independently breathing, eating and otherwise functioning person is absolutely morally repugnant,” Jackson said.
Moral and religious issues aside, that leaves the question of whether Arizona legislators have the authority to tell women they must carry a child with genetic defects to term.
In a 2018 ruling, the 7th U.S. Circuit Court of Appeals struck down an Indiana law that made it illegal to abort a fetus solely because of Down syndrome or has been diagnosed or has a potential diagnosis of “any other disability.” The judges ruled that this does more than impose reasonable restrictions, which in some cases are permissible, but amounts to “absolute prohibitions on abortions prior to viability which the Supreme Court has clearly held cannot be imposed by the state.”
But Denise Burke, an attorney for Alliance Defending Freedom, which describes itself as a Christian law firm, said the provisions of SB1457 are constitutional, saying it prevents against “modern-day eugenics.” And she said four states already have “enforceable bans” on abortions based on actual or perceived genetic abnormalities.
Asked by Rep. Kirsten Engel, D-Tucson, about that 7th Circuit case, Burke acknowledged that the U.S. Supreme Court declined to review that ruling.
SB1457 does not seek to ban all abortions, with Rep. Nancy Barto, R-Phoenix, who is sponsoring the measure, acknowledging that is subject to the federal Constitution and decisions of the U.S. Supreme Court. And unless and until the court voids the historic 1973 Roe v. Wade decision acknowledging a woman’s right to terminate a pregnancy, any move to outlaw the practice entirely and in every circumstance likely remains beyond the reach of state legislators.
But that isn’t keeping others from going down that path.
Most notably, Rep. Walt Blackman, R-Snowflake, would make both the doctor and a woman getting an abortion guilty of homicide. And it would mandate that prosecutors bring charges “regardless of any contrary or conflicting federal laws, regulations, treaties, court decisions or executive orders.”
There is no hearing set for that measure.
As to the legality of what’s in SB1457, Arizona does have a 2011 law which makes it illegal to perform an abortion based on the gender or race of the child.
That was challenged by the NAACP and the National Asian Pacific American Women’s Forum. But a trial judge tossed the lawsuit, saying they had no standing to sue, a decision upheld by the 9th U.S. Circuit Court of Appeals.
Murphy Bannerman, a spokeswoman for Planned Parenthood Arizona, said women seeking to terminate a pregnancy are presented with a questionnaire asking them if they are seeking an abortion for any of the prohibited reasons. She said if any admit to that – something she said is rare – her organization will not perform the abortion.
Cathi Herrod, president of the anti-abortion Center for Arizona Policy, said the ban on telemedicine and abortion pills in the mail is justified because medication abortions are four times more likely to result in complications than a surgical abortion. She said it also ensures a women seeking to terminate a pregnancy gets an in-person medical exam.