Toma and Petersen claim doctors have no legal right to challenge abortion ban

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A Ninth Circuit Court of Appeals panel is considering whether to revive a challenge to the 2021 law barring abortions based solely on genetic abnormalities. (Deposit Photos)

Toma and Petersen claim doctors have no legal right to challenge abortion ban

Arizona’s top two Republican lawmakers say doctors have no legal right to challenge a 2021 ban the GOP-controlled Legislature enacted on abortions due to fetal abnormalities because they aren’t saying they intend to violate it.

And even if they did, the attorneys for House Speaker Ben Toma and Senate President Warren Petersen are telling federal appellate judges there’s no imminent threat they would actually be prosecuted.

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House Speaker Ben Toma, R-Peoria, speaks with attendees at the 2023 Update from Capitol Hill hosted by the Arizona Chamber of Commerce & Industry at the Arizona Biltmore in Phoenix on April 6, 2023. (Photo by Gage Skidmore via Flickr)

That’s because Gov. Katie Hobbs issued an executive order removing the power from county attorneys to prosecute any abortion-related cases, giving it solely to Attorney General Kris Mayes. And Mayes has said she doesn’t intend to bring charges against any doctor who violates any abortion laws.

What all that means, the lawyers for the GOP lawmakers say, is the challengers have no legal standing to even be in court, and their claim should be thrown out of court.

The arguments come as doctors are going later this month to the 9th Circuit Court of Appeals seeking to overturn the ruling of a trial judge earlier year which upheld a 2021 state law that makes it a crime for a doctor to terminate a pregnancy if he or she knows the sole reason it is being sought is a genetic defect of the fetus.

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Senate President Warren Petersen, R-Gilbert, talks on the Senate floor about his rental tax elimination bill on June 13, 2023. (Photo by Camryn Sanchez/Arizona Capitol Times)

Judge Douglas Rayes, however, pointed out that last year’s year’s ruling by the U.S. Supreme Court overturned Roe v. Wade, the historic 1973 ruling which said there is a constitutional right of abortion. And that, he concluded, freed state lawmakers to enact — and enforce — whatever restrictions they want.

And Rayes said that is true even if the Arizona Supreme Court eventually concludes that abortions are legal for all other reasons through the first 15 weeks of pregnancy.

That sent the doctors to the federal appeals court asking for at least an interim order barring the state from enforcing the 2021 law.

At issue is the statute that makes it illegal to terminate a pregnancy “knowing that the abortion is sought solely because of a genetic abnormality of that child.” That includes chromosomal disorders.

Backers said the legislation was justified to prevent discrimination based on disability — even in the womb.

Rayes initially barred enforcement, saying the law placed an undue burden on women, something that prior U.S. Supreme Court rulings going back to Roe v. Wade found unconstitutional.

But the basis for that ruling went away last year after the high court overturned Roe. So Rayes, in a follow-up hearing, gave the go-ahead for the state to start enforcing the law.

Doctors, represented by the Center for Reproductive Rights, renewed their challenge, arguing among other things that the wording of the law is so complex as to be unworkable and confusing, leaving physicians unable to know what abortions are and are not legal. And that, they said, puts them at risk of going to prison for making the wrong decision.

But Toma and Petersen, represented by the anti-abortion Alliance Defending Freedom, said there’s a big legal problem in the doctors’ bid to enjoin enforcement: standing to challenge the law.

Their lawyers say anyone seeking an injunction must show “imminent danger of suffering a concrete harm by showing he intends to engage in conduct that is arguably affected with a constitutional interest.”

“Abortion no longer invokes a constitutional interest, because there is no constitutional right to obtain an abortion, much less perform one,” the attorneys argue.

What that leaves is the argument by the doctors that they no longer offer abortions “whenever there is even the slightest indication of a fetal condition.” And they said that harms them because they are hampered from offering options counseling to women.

Only thing is, the GOP lawmakers point out, the 2021 law does not impose a blanket ban on abortions simply because of a fetal genetic condition. Instead, they noted, the law criminalizes the procedure only if the defect is the sole reason the woman is seeking the procedure.

Rayes highlighted that point in earlier rulings, noting there are a “variety of conditions, some of which are inextricably intertwined with the detection of a fetal genetic abnormality.”

For example, he said, a patient might report she is terminating a pregnancy because she lacks the financial, emotional, family or community support “to raise a child with special and sometimes challenging needs.”

Toma and Petersen pick up on that point in their filing, saying the law does not bar terminating any pregnancy simply because a fetal abnormality has been detected.

“The statute does not say ‘slightest indication,’ nor does it cover all fetal conditions,” their legal papers state.

Nor do they believe it interferes with the rights of doctors to engage in other activities or communicate with their patients, with the only criminal act being performing an abortion knowing that the woman’s sole reason was the genetic defect.

“The statute neither mandates nor prohibits fetal screening, providing counseling to patients, or collaborating with other healthcare providers,” they said. That, they said, undermines the claims by the doctors that they are being denied the right to advise their clients.

“The statute does not prohibit speech,” the lawmakers said.

And all that, ultimately, comes down to that question of whether the doctors have legal standing to ask the court to enjoin the state from enforcing the law.

“Unless plaintiffs intend to abort unborn children knowingly for the sole reason of a genetic abnormality, they have no intention of breaking the law,” the attorneys for the GOP lawmakers told the appellate judges. “They have never alleged such an intent.”

And that, the lawyers said, means they have no legal interest in the statute.

But the issue, the lawyers for Toma and Petersen are telling the appellate judges, goes beyond that.

They said anyone seeking to enjoin enforcement of a law while its legality goes to a full trial must show the threat of imminent harm. And that, they said, doesn’t exist here.

All that goes to public statements by Mayes, given authority by Hobbs, who has said she will not enforce laws outlawing abortions, including the one at issue here. And the attorney general also has said she is barring county attorneys from bringing their own charges.

What that leaves, according to the lawyers for the GOP lawmakers, is the possibility that Mayes is not reelected in 2026 and her successor decides to prosecute those who violate the law. But that, they said, is no reason to enjoin its enforcement now.

“This is not a credible threat of prosecution,” they told the appellate judges. “It is an invented parade of horribles that have no basis in fact.”

There is some precedent for what Toma and Petersen are arguing about who has standing to sue.

State legislators approved a 2011 law which bans abortions based on the race or sex of the child.

U.S. District Court Judge David Campbell said the groups who filed suit contend the statute “stigmatizes and denigrates their members on the basis of race and gender,” based on comments by Rep. Steve Montenegro, R-Goodyear, that Asian women abort girls because they prefer boys, and Black women are more likely to be talked into terminating a pregnancy.

But Campbell threw out the lawsuit, saying there is nothing in the claim to show that any individual actually has suffered a personal injury because of what the Legislature enacted, beyond psychological consequences. And that, he said, means the groups that sued had no right to challenge the law.

The ultimate fate of this law on abortions and genetic defects could depend on two other events.

One is that the Arizona Supreme Court is weighing whether last year’s ruling overturning Roe v. Wade reinstated the state’s territorial-era law banning all abortions except to save the life of the mother. If that’s how the justices rule, the question of whether abortions are allowed or prohibited in cases of fetal defects becomes moot.

The other is an initiative proposing an amendment to the Arizona Constitution which would guarantee the right of women to terminate a pregnancy. If that were to be approved in 2024 it would pretty much override whatever the federal courts rule in this case.