That distinction is critical as Judge Douglas Rayes considers a bid by abortion rights advocates to block a law set to take effect Sept. 29, which 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 defect, even if the fetus is not viable outside the womb. The law carries a penalty of up to a year in prison for doctors and others; there is no penalty on the woman.
During a hearing Wednesday, Rayes pointed out that Roe v. Wade, the historic 1973 ruling that legalized the right to abortion, does not say that women are entitled to terminate a pregnancy at any time or for any reason. And he said the high court has upheld restrictions on the procedure.
Emily Nestler, an attorney for the Center for Reproductive Rights, told the judge the state can impose certain restrictions on how and where the procedure is performed.
“But it cannot completely preclude the choice to terminate a pregnancy altogether,” she said.
“In this case, the law eliminates the right to an abortion for patients when they have a fetal diagnosis,” Nestler continued. “Under those circumstances there is no (state) interest that can outweigh the elimination of the right.”
But she told Rayes that even if he dubs the law a “regulation,” it is irrelevant. She said federal courts have struck down other abortion laws because they place an “undue burden” on women and place a “substantial obstacle to an abortion before the fetus attains viability.”
“The law … and all precedents for the past 50 years has made clear that up until the point of viability the woman has a right to terminate her pregnancy, and that the reason for that abortion is not relevant,” Nestler said.
Assistant Attorney General Michael Catlett is arguing that the state does have a legitimate interest in precluding such abortions. That is based on the contention that the law extends the protections against discriminating against the disabled to the unborn.
“The statute is designed to stopping physicians from performing abortions knowing that the sole reason is genetic abnormalities,” he said.
“That furthers the state interest in avoiding discrimination because the state has an interest in assisting people with disabilities succeed in life,” Catlett continued. “It can’t further its interest in avoiding discrimination any more than preventing people with disabilities from being terminated before they’re even born.”
But Rayes said that still leaves the question of whether the law actually — and absolutely — denies some women the right to an abortion, something that could make it an illegal ban.
He noted that the law requires a doctor to inform a patient that it is illegal for her to terminate a pregnancy if it is solely due to a fetal defect. The judge then grilled Catlett on whether a woman could get an abortion if she tells the doctor that is the reason she is there.
“From that doctor, she cannot,” Catlett said.
“The state’s desired outcome is that physicians in Arizona not perform discriminatory abortions, either because they’ve been expressly told by the patient that that is the reason for the abortion, is solely because of a genetic abnormality or there’s some other indication from which the doctor would be aware that that is the sole reason,” he said.
But what it does not preclude, Catlett conceded, is the woman going to another doctor — and simply refusing to disclose her reason for getting an abortion — or lying about it.
And that, he said, makes the law a regulation versus a prohibition.
Rayes was skeptical.
“How likely is it she would seek abortion from another doctor if she’s just been told by her current doctor that Arizona law prohibits abortions because of genetic abnormalities of a child?” he asked.
“I think if she wants to obtain the abortion, I think that she’s pretty likely to do that,” Catlett responded.
The judge, however, questioned whether a woman would have the knowledge to go look up the law and see that that is an option.
There are other issues that apparently bothered Rayes.
For example, he asked what would happen if a women told a doctor she wants to terminate a child with a genetic defect, not because she doesn’t want such a child but that she lacks the resources to provide the proper care. Catlett said an abortion could still be performed because the defect would be only part of the reason, with finances being the balance.
Rayes separately noted that Catlett’s claim that women can still get an abortion — meaning it is not a ban — could undermine the state’s argument that this is all about the real purpose of the law being to protect the disabled. He suggested if that is the goal, the only way to do that would be to ban such abortions outright or place substantial obstacles in the path of women seeking to terminate a pregnancy.
Catlett, however, sought to rephrase the law as one to keep doctors from intentionally or knowingly performing an abortion when the sole reason is a genetic defect.
“It sends a message to the medical community that the state believes strongly that physicians should not be performing intentionally discriminatory abortions,” he argued. “The state wants to eliminate or reduce the effects of discrimination by medical doctors when performing abortions, or for them pressuring women to perform abortions based on discriminatory reasons.”
Nestler, however, told the judge that the claim of pressuring holds no water. She said by the time a woman shows up at a doctor’s office she already has decided she wants an abortion.
But what the law does, Nestler said, is put doctors at risk of prison if they make the wrong decision or someone decides they knew or should have known the real reason a woman wants an abortion.
There are other issues for the judge to consider.
Rayes wanted to know whether relying on women to lie — or withhold information — to get an abortion interferes with their constitutional right of patients to communicate with the doctors. Catlett contends there is no such right.
The lawsuit also challenges a declaration in the statute that the laws of Arizona must be interpreted to give an unborn child the same rights, privileges and immunities available to anyone else. Catlett said it could be used to interpret other existing civil and criminal sections of law.
“If someone causes the death of an unborn child, the ‘personhood’ provision may now be able to result in compensation to the family of the unborn child for wrongful death,” he said.
But Catlett said that language law could not be used to bring manslaughter charges against a women whose negligence during pregnancy led to the death of the fetus.
The recent decision by the U.S. Supreme Court to allow enactment of a Texas law banning abortions at six weeks is unlikely to have any effect on whatever Rayes rules.
In that case, the high court sidestepped the issue, at least for the time being, because the Texas law does not create a new crime, as does the Arizona law, but instead gives individuals the right to file civil suits against anyone who aids in an abortion. And the justices never actually ruled on the merits of the underlying statute.