Panel considering whether to revive challenge to law barring abortions based solely on genetic abnormalities

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

A district court judge previously declined to renew an injunction on the law as he found the abortion providers and organizations that brought the suit no longer had standing to bring a pre-enforcement challenge post-Dobbs.

Jessica Skarlsky, attorney for the plaintiffs, claimed they had the right to continue the case as abortion providers could face a “credible threat” of civil and criminal prosecution, as well as loss of medical licenses and “undisputed economic harm” under enforcement of the law.

But Denise Harle, attorney for intervenors Senate President Warren Petersen, R-Gilbert, and Speaker of the House Ben Toma, R-Peoria, claims abortion providers are not likely to see the law enforced by Attorney General Kris Mayes or county attorneys and therefore are not likely to suffer any tangible harm.

The panel heard arguments this morning from plaintiffs Drs. Paul Isaacson and Eric Reuss; the state chapter of the National Council of Jewish Women; the Arizona National Organization of Women; and the Arizona Medical Association, and from Toma and Petersen, who stepped in to defend the law after Mayes bowed out after finding the law to be “unconstitutional.”

The plaintiffs initially challenged the law in 2021 and secured a partial preliminary injunction from District Judge Douglas Rayes.

Rayes found the provisions criminalizing and barring physicians from performing abortions if sought “solely because of a genetic abnormality of the child” to be vague and impose an “undue burden on the rights of women to terminate pre-viability pregnancies.”

But when the plaintiffs sought to renew the injunction, Rayes found they did not have standing as abortion was no longer considered a constitutional right.

Sklarsky argued prior caselaw concluded that an additional constitutional right was not essential to establish standing for the challenge as the legal test used inherently deals with due process. She said Rayes’ ruling was “plainly at odds with” court precedent.

Sklarsky claimed the plaintiffs fulfilled the requirement for standing, claiming a “credible threat of enforcement,” as well as “extremely severe penalties” abortion providers face in navigating the law, including civil and criminal liability and the loss of their licenses, as well as economic harm.

Harle, the attorney for Petersen and Toma, claimed abortion providers do not face any real threat of enforcement as Mayes has indicated she finds the law “unconstitutional,” and declined to defend it.

She also noted Gov. Katie Hobbs’ executive order taking abortion cases from county attorneys and placing them under Mayes’ jurisdiction, knowing Mayes did not intend to prosecute.

Ninth Circuit Judge Andrew Hurwitz said the standing legal question is whether Hobbs truly has that authority. He also noted there was nothing in the record indicating county attorneys would not enforce the law.

And, regardless, he pointed out the statute includes a private right of action, which allows the father of a child to sue.

Sklarsky said the private right of action provision “only underscores credible threat” of enforcement and prosecution. And she pointed out that the seven-year statute of limitation in the law means another attorney general or governor could quickly flip the state’s position on enforcement.

Harle said the prospect of private action, as well as an election down the line was merely “speculation on speculation,” and argued case law held that the “theoretical possibility of injury sometime in the future is too conjectural” to sustain the challenge.

The Ninth Circuit panel will now consider whether to remand the case for further consideration.