Howard Fischer, Capitol Media Services//January 28, 2025//[read_meter]
Howard Fischer, Capitol Media Services//January 28, 2025//[read_meter]
Planned Parenthood could be just days away from once again offering abortions beyond 15 weeks.
In a new court filing, attorneys for the organization are pointing out that no one has come forward to defend the 15-week limit which they challenged after voters approved Proposition 139 in November. That initiative places a right to terminate a pregnancy into the Arizona Constitution.
Planned Parenthood said at the time that the initiative, by itself, did not actually void the 15-week limit. After the election, the organization said it would not resume providing abortions beyond the 15-week limit unless and until there is a clear ruling.
So Planned Parenthood filed suit against the state, asking Maricopa County Superior Court Judge Frank Moskowitz to get such a declaration.
Only thing is, Attorney General Kris Mayes told the judge she actually agrees with those who filed suit. And with that, now the attorneys for the challengers are asking Moskowitz to declare the law to be unconstitutional and permanently bar its enforcement.
“As all parties agree, the ban prohibits physicians from providing abortions after 15 weeks of pregnancy — months before viability — upon pain of severe criminal, civil and professional penalties,” wrote Karin Scherner Aldama, lead attorney for Planned Parenthood.
The only thing left now is for the judge to rule on her motion.
Moskowitz may have little choice.
What makes that likely to happen is that, despite comments by abortion foes after Prop 139 was approved, no one else has sought to defend the 15-week limit.
Senate President Warren Petersen, an abortion foe, said at the time that he was “looking into every option’” to keep the law in place despite the public vote. To date, nothing has been filed in court.
Ditto the Center for Arizona Policy.
Cathi Herrod, president of the anti-abortion group pointed out after voter approval of Proposition 139 that it did not create an absolute right to abortion. She said it permits state regulations of abortions — even beyond 15 weeks — if there is a “compelling state interest.”’
“An abortion after 15 weeks increases the risk of a woman having significant complications, including infection, heavy bleeding, and injury to the uterus,’” Herrod said at the time.
And now?
“The lawsuit and General Mayes’ response reflect the extreme abortion position that supports abortion up until birth,” Herrod said. “It is a sad day.”
But CAP has not filed any paperwork in this case. And Herrod said she does not know whether anyone else will intervene. Even if someone were to now come forward, it could be too late, as the lawsuit was filed nearly two months ago.
Abortions had been available in Arizona until fetal viability — generally considered between 22 and 24 weeks — until 2022.
That year, the U.S. Supreme Court overturned Roe v. Wade, the historic 1973 ruling that declared that women have a constitutional right to abortion.
Mark Brnovich, who had been state attorney general at the time, then got a judge to conclude that that decision legally resurrected a territorial-era law — never repealed even after Roe — outlawing the procedure except to save the life of the mother.
The state Court of Appeals later ruled that a 15-week ban approved by lawmakers before the U.S. Supreme Court ruling applies. But that, in turn, was overturned last year by the Arizona Supreme Court, reinstating the 1864 law.
In the interim, however, state lawmakers narrowly voted to repeal the old law, leaving the 15-week ban in place.
That measure, approved by 61% of voters, bars the state from adopting or enforcing any law that denies, restricts or interferes with the fundamental right of abortion prior to fetal viability.
There also are provisions, not at issue here, to allow post-viability abortions to protect the life or health of the mother. But Planned Parenthood announced it would not perform post 15-week abortions with the law on the books, due to potential penalties, unless and until a judge declared the statute unenforceable.
The issue, their attorneys argued, starts with the fact that the law spells out that any doctor who intentionally or knowingly violates that 15-week law is guilty of a class 6 felony. That carries a presumptive sentence of one year in state prison.
Criminal liability aside, state law also allows the Arizona Medical Board to conduct its own independent investigations to determine if a physician has engaged in “unprofessional conduct,” something that includes violating any federal or state law and, specifically, committing a felony. The board then has the power to suspend or revoke a doctor’s license and impose penalties of up to $10,000 per violation.
“The ban penalizes health care providers who assist their patients … forcing them to stop providing the critical care their patients seek in accordance with their best medical judgment under the threat of criminal prosecution, severe civil sanctions, and revocation of their medical licenses,’” the challengers said in filing suit.
Now, with no legal opposition, they say the path is clear for Moskowitz to act.
“If the ban is not permanently enjoined, pregnant Arizonans will continue to suffer the deprivation of their fundamental rights and serious harm to their physical, psychological, and dignitary well being, as well as that of their families,” the new filing states. It also says failure to declare the 15-week law unenforceable will affect medical providers, keeping them from “providing constitutionally protected health care to their patients, contrary to their medical and ethical duties.”
“There are thus no material factual disputes to resolve: Plaintiffs are entitled to judgment on the pleadings because, as the parties agree, the ban is unconstitutional as a matter of law.”
Not all abortion providers have waited for Moskowitz to rule.
One of those who filed suit was Dr. Paul Isaacson, an obstetrician and gynecologist at Family Planning Associates Medical Group.
He noted that, despite the lack of a court ruling, Mayes had said her office won’t take any actions against any individual accused of violating the law while the case is being litigated. And Isaacson’s website says he provides surgical abortions up to 23 weeks and six days from the start of a woman’s last menstrual period.
Other major providers, including Camelback Family Planning, advertise they currently perform abortions only up to 15.6 weeks of pregnancy.
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