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Texas abortion law template for Arizona

In this April 23, 2021, file photo, members of the Supreme Court pose for a group photo at the Supreme Court in Washington. Seated from left are Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer and Associate Justice Sonia Sotomayor, Standing from left are Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch and Associate Justice Amy Coney Barrett.  (Erin Schaff/The New York Times via AP, Pool)

In this April 23, 2021, file photo, members of the Supreme Court pose for a group photo at the Supreme Court in Washington. Seated from left are Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer and Associate Justice Sonia Sotomayor, Standing from left are Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch and Associate Justice Amy Coney Barrett. (Erin Schaff/The New York Times via AP, Pool)

The head of the state’s premier anti-abortion organization said Thursday she is looking to use the newly enacted Texas ban on the terminating a pregnancy after fetal heartbeat has been detected as a template for legislation here.

Cathi Herrod, president of the Center for Arizona Policy, said the late-night decision Wednesday by the U.S. Supreme Court to allow the Texas law to take effect appears to provide a “road map” for enacting abortion restrictions in this state that, until now, have been struck down by federal courts.

But the key to the Supreme Court action is the difference between SB 8 and all other abortion restrictions.

Laws from other states make it a crime to terminate a pregnancy in certain situations or after a certain date, with the state in charge of enforcing the law and prosecuting offenders.

For example, a 2012 Arizona law to make it a crime to perform an abortion after 20 weeks was struck down by a federal court, a decision upheld by the Supreme Court. Similar laws from other states have met similar fates at the high court.

Cathi Herrod

Cathi Herrod

In Texas, however, the law empowers individual citizens — and not necessarily from Texas — to file civil suits against not only abortion providers but anyone who “aids or abets” aborting a fetus after a heartbeat has been detected.

That usually occurs about six weeks into pregnancy, which may actually be before a woman knows she is carrying a child. It also could effectively become a nearly total ban on the procedure based on estimates that at least 85% of abortions are performed after that point.

It is that unusual structure of civil enforcement of the statute that resulted in the 5-4 decision of the Supreme Court to allow SB 8 to take effect while other legal challenges make their way through the courts. And that is the first time the justices have given their blessing to such a sweeping restriction since the historic Roe v. Wade decision in 1973 that says states may not restrict the ability of a woman to terminate a pregnancy before a fetus is viable.

Herrod is taking a closer look at what she calls a “novel approach” to restricting abortion.

“The Texas heartbeat law is a road map to what other states can do,” she told Capitol Media Services. “The Texas heartbeat law is worthy of serious consideration by the Arizona Legislature.”

She acknowledged that, strictly speaking, the Supreme Court action was not a final ruling on the constitutionality of the measure. But the fact remains that the justices have allowed the law to take effect.

The high court decision is based on the unusual approach taken by Texas lawmakers.

SB 8 spells out that its ban on post-heartbeat abortions is enforced only by individuals who can sue doctors, friends, associates or others that help a women terminate a pregnancy. It even provides for them to recover their legal fees and offers a $10,000 minimum reward for every successful lawsuit.

Nancy Barto

Nancy Barto

And it is that approach to the issue that five of the justices of the Supreme Court said guided their decision not to block its enforcement.

In a brief unsigned opinion, the majority said the abortion providers who challenged the law did not properly address the “complex and novel antecedent procedural questions” in the case of having a law enforced not through criminal trials brought by prosecutors but through civil lawsuits that anyone can file. So the justices left the statute intact pending any further challenges to the statute.

That drew dissents from the other four, including an angry reaction from Justice Sonia Sotomayor who called the order “stunning,” particularly given the still-in-effect precedent of Roe v. Wade.

“Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of the justices have opted to bury their heads in the sand,” she wrote. Sotomayor said the failure of the court to act “rewards tactics and inflicts significant harm on the applicants and on women seeking abortions in Texas.”

Even Chief Justice John Roberts sided with the three more liberal justices, saying he would have enjoined enforcement of the law to let lower courts decide “whether a state can avoid responsibility for its laws” prohibiting abortions after roughly six weeks because it “essentially delegated the enforcement of that prohibition to the populace at large.”

Herrod isn’t the only one paying attention to the ruling and what it could mean in Arizona.

So is Sen. Nancy Barto, R-Phoenix.

She is the sponsor of a new Arizona law which makes it a crime, enforceable by the state, to abort a fetus due to “genetic abnormalities.” That law is set to take effect at the end of this month, though there is a lawsuit challenging its constitutionality.

FILE - In this Sept. 1, 2021 file photo, a security guard opens the door to the Whole Women's Health Clinic in Fort Worth, Texas. Even before a strict abortion ban took effect in Texas this week, clinics in neighboring states were fielding more and more calls from women desperate for options. The Texas law, allowed to stand in a decision Thursday, Sept. 2, 2021 by the U.S. Supreme Court, bans abortions after a fetal heartbeat can be detected, typically around six weeks. (AP Photo/LM Otero)

In this Sept. 1, 2021 file photo, a security guard opens the door to the Whole Women’s Health Clinic in Fort Worth, Texas. Even before a strict abortion ban took effect in Texas this week, clinics in neighboring states were fielding more and more calls from women desperate for options. The Texas law, allowed to stand in a decision Thursday, Sept. 2, 2021 by the U.S. Supreme Court, bans abortions after a fetal heartbeat can be detected, typically around six weeks. (AP Photo/LM Otero)

Barto said she wants to see how this particular approach to banning abortions at six weeks is considered by the courts on its merits. But the senator indicated she is hopeful.

“So far, it’s saving lives,” Barto said of the Texas statute. “And that should encourage everyone who care about protecting life in the womb.”

The ruling, however, concerns Planned Parenthood of Arizona — and not just over the potential to use it as a template for new laws. Organization spokeswoman Murphy Bannerman pointed out that the law Barto already ushered through actually has some of the same elements of civil enforcement as the Texas statute.

For example, she noted, the law does more than make it a crime to perform an abortion knowing that the reason was the genetic abnormality. It also allows the husband of the woman who has such a procedure to file a civil suit on behalf of the unborn child.

And if the women is younger than 18, her parents can sue.

What all that means, Bannerman said, is that those who want to preclude this kind of law in Arizona will have to be vigilant.

“We are asking for people to email their legislators and tell them that you don’t support abortion bans, that you don’t support something similar to SB 8 being enacted here in our state,” she said.

Herrod, however, said while the approach Texas is taking is unique, it is not without precedent, even in places like Arizona. She said there are other circumstances where a private citizen can enforce laws.

“If you walk by a car that’s locked and you see a child that’s inside that car, and it’s in our heat and the child is clearly not going to survive, you’re going to bust open the window and save that child,” Herrod said. “That’s analogous to what Texas is trying to do, that the private citizen is able to protect that child from the abortionist’s hand.”

There was no immediate response to the Supreme Court ruling from Gov. Doug Ducey who has signed every abortion restriction that has reached his desk.

What’s next for SB 8 — and any other similar law enacted here or elsewhere — will be further litigation.

The majority stressed it was not issuing a ruling on whether the Texas law is constitutional. And the justices said they were not limiting “procedurally proper challenges” to it.

“We know this isn’t the end of the road on litigation,” said Herrod. “The pro-abortionists will come up with some other approach to watch this law.”

 

 

5 comments

  1. Herrod and Barto are two of the worst persons in AZ enacting and pushing their toxic religious belief down everyone’s throat. To compare a child locked in hot car and any citizen to break the window to save it, to any vigilantly to sue their sister, friend, or some stranger because they “heard” or “know” they had an abortion is not only dangerous but un-democratidc. This is what despotic country leaders do! They go after everyday citizens trying to make decisions best for themselves and their families. Not have some idiot sue them bc of a PRIVATE MEDICAL DECISION!. When does it end? How far are we citizens going to let the Fanatic Republican Party take this country back to the dark ages? Everyone Needs to Wake the F*** up! Vote these idiots out of office. The truth is they are only Pro-Birth! That’s it. Every other policy to support children, families, those struggling to live, put food or find shelter, all types of aide and benefits – the Republican Party is AGAINST it! They could care less about child poverty rate in this country. They could care less about those under the poverty rate that need medical care. They Don’t care once the child is born how to ensure it has the best chance to survive and thrive. They are nothing more than a fraud and this is the result. If this TX horrific model on the assault of the Women’s Constitutional Right is enacted, we will rise up and vote and make all of you despots pay for your hated of women rights. This will not stand!

  2. Anyone who does not believe a fetus with a heartbeat is a viable life is both sick and dishonest, and some, such as the Governor of Virginia, publically say a mother should be allowed to decide to slaughter the “newborn” as long as two or three days after birth. They are willing to commit murder. In many jurisdictions, if a pregnant woman is murdered, the perpetrator is charged with two murders, the pregnant woman and the fetus…

  3. Republicans can’t have it 2 ways, though they keep trying! Trying to stop women’s right to choose, by legal force & intimidation. Yet won’t allow protecting children already alive, & viable, by getting vaccinated & a most simple thing such as a proven scientific essential as wearing masks (correctly, as well).

    As the first commenter said the comparison is ludicrous about a citizen saving a child from a hot car. This law encourages folks to be vigilantes – rewarding them to look for what they perceive to be their right to interfere in a woman’s decision in consult with a physician. There is NO right like that! It’s the law!

    The question is not about a “fetus with a heartbeat” by George – it’s about politicians getting into a woman’s visit with her physician! Funny how Republicans hate government interference in everything but when it comes to assisting children, as the first commenter here noted. It’s total hypocrisy.

    I don’t want Republican advice coming with me into my physician’s office, I don’t want their laws with me when I discuss any problems with my doctor. Every other modern country in the world goes forward. Thanks to most Republicans, this country keeps trying to go backwards.

    I don’t care what Republican BS talking points will say about it. All this manipulation has to stop. So I say, yes – let’s adjust the court, (pack it!), let’s codify RvW right now! Stop this madness.

  4. You know what’s sick George, you a man telling any woman what to do about her medical decisions. What’s even more sick is the new GOP platform re: abortion is there no waiver for a woman who is pregnant due to a RAPE or INCEST or to save the life of the mother due to complications. That is SICK and DISHONEST that people like you think it’s OKAY for any woman to carry a child to term bc of your “belief”. Pathetic that now vigilantes, like you, would make money off in turning in your niece, sister, neighbor or coworker bc she had to make the choice that is her constitutional right to do so and a private medical decision. You or I don’t have a say in those decisions.
    The GOP will pay for this at the ballot, as this is new platform and that is what they’re after. A woman’s choice is just that – Choice to carry to term, give the child up for adoption or to terminate.
    BTW: The VA Gov. in 2019 never said that a mother and her doctor can just terminate a delivered baby; read his words in context to what can happen in a 3rd trimester. So quit spreading lies!

  5. The Texas anti-abortion “Law” championed by the Texas Governor, cloaked in a self-righteous stance of saving babies passed and is implemented today. In the United States 14% of our children live in poverty. In Texas, 21% children live in poverty. To show a true commitment to children, Texas should have developed and implemented a plan to address and mitigate childhood poverty coupled with easily assessable high quality health services, free contraception for childbearing women, and hey, what about a campaign of men taking responsibility for preventing unwanted pregnancies!! I mean, are women getting pregnant on their own? Where is the commitment to our children who are already here? Would it have been too thoughtful, too honest, too smart to take care of the children who are already here prior to forcing families to continue unwanted pregnancies? I cannot wait to see how the Governor solves the “rape problem.” I doubt if he has ever seriously spoken to any victims of rape, consulted with professionals who serve rape victims; nor done any true research on the cycle of violence. I surely want to hear the governor’s comprehensive plan to address “the rape problem,” and the funding commitment to address it seriously and comprehensively.

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