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Groups oppose bid to enforce abortion law

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)

Abortion rights advocates are urging U.S. Supreme Court Justice Elena Kagan to spurn a bid by Attorney General Mark Brnovich to let Arizona immediately begin enforcing a new restriction on the procedure despite a federal judge’s ruling blocking the move. 

In new court filings December 21, Jessica Sklarsky representing the Center for Reproductive Rights, told Kagan that there is no basis for the claim by the attorney general that Arizona will suffer “irreparable harm” if it cannot make it a crime to block doctors from performing abortions in cases where the woman’s reason is a fetal genetic defect. She pointed out that such procedures have been legal and practiced since the U.S. Supreme Court legalized abortion in 1973. 

Sklarsky also dismissed claims by Brnovich that a federal appeals court here would overrule a decision by a federal court in Phoenix enjoining enforcement of the law. She said the court found multiple problems that suggest the law is unconstitutional. 

“It concluded that plaintiffs were likely to succeed both because the law imposes an undue burden in violation of substantive due process, and because its ill-defined and internally inconsistent prohibitions are unconstitutionally vague,” Sklarsky said. 

Her pleadings are to Kagan who handles emergency appeals from the 9th Circuit Court of Appeals, which last month denied the request by Brnovich to immediately stay the ruling by U.S. District Court Judge Douglas Rayes putting the law on hold. It is now up to Kagan to decide the issue herself or refer it to the full court. 

There is no indication when any of that would occur. 

Hanging in the balance is a statute, approved earlier this year by the Republican-controlled Legislature, which makes it a felony for medical providers to terminate a fetus if they know that the reason the woman is seeking the procedure is solely because of a genetic abnormality. The law carries a penalty of up to a year in prison for doctors – there is no penalty for the woman. 

The law also creates a more serious crime for any person, including but not limited to doctors, to “solicit or accept monies to finance … an abortion because of a genetic abnormality.” That carries a presumptive prison term of 3.5 years. 

And it also creates liability on any medical or mental health provider who knowingly does not report known violations of the law to police. 

Sklarsky noted that, in blocking enforcement, Rayes said that even if the hurdles of the law do not discourage women from seeking to terminate their pregnancy, it will still be a “vexing task” to “find another provider who is both eligible and willing to perform the procedure.” And Rayes said that because a diagnosis of fetal defects often cannot be made until later in pregnancy, patients often “are racing against a clock because Arizona law prohibits post-viability abortions.” 

In seeking an injunction from Kagan, one of the things Brnovich needs to prove is that the failure of Arizona to enforce the law will cause “irreparable harm.” Sklarsky told the justice he hasn’t met that burden. 

“A state does not automatically face irreparable harm when enjoined from enforcing an unconstitutional law because seeking to enforce an unconstitutional law is not a valid exercise of state power,” she wrote. “Furthermore, Arizona offers no evidence that the safety and health of the people will be threatened if the status quo is preserved while the court of appeals considers the merits of (Brnovich’s) preliminary injunction appeal.” 

Sklarsky also brushed aside the attorney general’s claim that the law is necessary to prevent illegal discrimination against the disabled because of genetic defects, an argument he said extends to those still in the womb. 

“Arizona remains free to send an unambiguous message about the equal dignity and value of people born with genetic abnormalities through other means,” she said. “But it may not further its interests by erecting a substantial obstacle in the paths of women who have chosen to terminate their pre-viability pregnancies.” 

Sklarsky also said Arizona may enact laws to promote childbirth over abortion. 

“But such laws must be designed to encourage women to choose childbirth and not to thwart them from making any other choice.” 

Brnovich’s petition comes as the Supreme Court is weighing how far states can go to limit or even ban abortions. The justices are weighing whether to uphold a Mississippi law that would outlaw all abortions after 15 weeks, long before viability. 

The court also could use the case to overturn the historic 1973 ruling of Roe v. Wade, which legalized abortion. That would leave it up to each state to set its own restrictions or ban it outright. 

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