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Judge blocks time-limit laws on abortions – ‘permanently and forever’

Hundreds of people gather in front of Flagstaff City Hall to protest the new Arizona State Supreme Court ruling on abortion Friday, April 12, 2024, in Flagstaff, Ariz. (AP Photo/Hattie Loper/Arizona Daily Sun)

Judge blocks time-limit laws on abortions – ‘permanently and forever’

It’s now official: There are no time limits in Arizona beyond which an abortion can be performed.

In a brief order March 5, Maricopa County Superior Court Judge Frank Moskowitz granted the motion by abortion providers to declare the state’s current 15-week limit unconstitutional. More to the point, the judge “permanently and forever” blocked state officials from enforcing the law.

The order, in some ways, was not a surprise.

It follows the decision of Arizona voters last November to approve Proposition 139. That measure enshrined a “fundamental right” to terminate a pregnancy into the Arizona Constitution.

Challengers brought the lawsuit against the state, but Attorney General Kris Mayes, whose job includes defending state laws, agreed with the plaintiffs that the approval of the ballot measure did, in fact, make the law unenforceable. And no private anti-abortion group sought to intervene to defend the statute.

The lawsuit is expected to be only the first in a series seeking to cite Prop. 139 to overturn a host of other abortion regulations that remain on the books. These range from a 24-hour waiting period before a woman can terminate a pregnancy, a requirement to first perform an ultrasound and to a restriction on who can perform an abortion, even one with drugs instead of surgery.

Nancy Northup, president and CEO of the Center for Reproductive Rights, said those battles are already on her agenda.

“Barriers to abortion access in Arizona remain,” she said in a prepared statement, saying the remaining restrictions like waiting periods “continue to undermine the voters’ will.”

“We will keep fighting to ensure that Arizonans get all the freedoms they voted for and rightfully expect.”

At the same time, however, Republican lawmakers are seeking to enact even more restrictions.

That includes HB2681, approved this week by the House, which would impose new requirements on the use of abortion-inducing drugs. These range from requiring a physician to first examine the patient in person — meaning no ability to prescribe the drugs after a “telehealth” exam — to performing blood tests and scheduling a follow-up visit.

The measure is designed to test the limits of the protections in Prop. 139.

And Rep. Rachel Keshel, R-Tucson, is also trying to get colleagues to put a constitutional amendment on the 2026 ballot that would undo some of the protections voters approved last year.

What voters did approve spells out not only that every individual has a fundamental right to abortion but says the state cannot enact any law or regulation that restricts that right prior to fetal viability — generally considered between 22 and 24 weeks of pregnancy — “unless justified by a compelling state interest that is achieved by the least restrictive means.”

It allows some state intervention after that point, but only when the treating health care professional determines it is “necessary to protect the life or physical or mental health of the pregnant individual.”

In filing suit, attorneys for Planned Parenthood of Arizona and doctors Eric Reuss and Paul Isaacson said that language clearly preempts the state’s 15-week limit.

They pointed out that Prop 139 says the only regulations allowed must be for the limited purpose of “improving or maintaining the health of an individual seeking abortion care.” And, second, any laws adopted under the initiative cannot “infringe on that individual’s autonomous decision making.”

“The ban deprives plaintiffs’ patients of their fundamental right to abortion under the Arizona Constitution, causing them to suffer significant constitutional, physical, psychological and other harms,” their lawsuit argued.

What made the lawsuit necessary is that Prop. 139 itself, while amending the Arizona Constitution, did not automatically void the law and the penalties against performing abortions beyond 15 weeks. And that led some abortion providers to initially say they would not resume abortions beyond that point until there is a clear ruling.

That changed after Mayes assured providers that her office would not bring charges against any abortion provider. And Gov. Katie Hobbs had previously issued an executive order stripping the state’s 15 county attorneys of any ability to enforce any abortion law, though the scope of that directive has yet to be tested in court.

Now, with the March 5 ruling, there is no legal question remaining over the 15-week limit.

Isaacson cheered at the ruling.

“For nearly three years, my hands were tied because of this cruel ban,” he said in a prepared statement. “It is a relief to no longer have to turn away patients from essential health care.”

That still leaves the question of what comes next in the legal battles.

All that will depend on future litigation — and whether a judge believes that the restrictions that remain, like a waiting period or on who can perform an abortion, and even the mandate for an ultrasound, fit within that definition of a “compelling state interest” that Prop. 139 does allow.

And it’s not just looking at what’s already on the books.

Keshel and other abortion foes are trying to enact restrictions on the use of mifepristone. That drug blocks the hormone progesterone that is needed for a pregnancy to continue.

She contends nothing in the initiative precludes what is in HB2681.

“Now that the voters did decide that Prop 139 was what they wanted, majoritively, we have to ensure that women are safe with these things,” she argued as the House debated the measure earlier this week. “I’m not trying to stop women from making that decision.”

Keshel said what it does ensure is that women get the pill from a doctor “and have that oversight and ensure that they know any of the risks.”

Her bill would require a personal examination, verifying a pregnancy exists, determine the patient’s blood type and inform the patient she may see the remains of the fetus. There also is the requirement to schedule a follow-up visit to confirm the pregnancy has been terminated.

It also contains a right to sue a doctor or anyone else who does not comply.

Rep. Stephanie Simacek, D-Phoenix, disagreed with Keshel’s contention that such new restrictions are not barred by Prop 139. She said it throws unnecessary hurdles into the path of women who want an abortion, saying it bars patients from getting the drugs delivered to them by mail or courier, “which accounts for two-thirds of abortions in the United States.”

Simacek also said the drug is found to be safe and effective in more than 99% of cases, a point noted by Rep. Stephanie Stahl Hamilton, D-Tucson, who said that makes it safer than Viagra or penicillin.

But Rep. Quang Nguyen, in voting for the measure, said all that is irrelevant.

“Regardless of what you might think in terms of safe and unsafe, apparently it’s not safe for the baby,” said the Prescott Valley Republican.

The measure now awaits action in the Senate. But even if it is approved there, it faces a likely veto from Gov. Katie Hobbs who has said she will not approve any measure she believes interferes with a woman’s right to abortion.

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