Abortion providers seek to strike Arizona laws that limit access

PHOENIX (CN) — Arizona abortion providers gave closing arguments Monday after a three-day evidentiary hearing in which they challenged more than a dozen abortion laws they say infringe on Arizonans’ newly gained right to abortion care.

Dr. Paul Isaacson, an OB/GYN who supported Arizona’s 2024 constitutional amendment guaranteeing abortion access, testified in November that laws requiring extended waiting periods, prohibiting abortion via telehealth, and prohibiting abortion for certain reasons like race or fetal abnormality can prevent necessary care by pushing patients past legal deadlines for obtaining an abortion and chilling honest communication between patients and providers.

Because Democratic Attorney General Kris Mayes has already vowed not to enforce the challenged laws, State Senator Warren Petersen and State Representative Steve Montenegro, both Republicans, intervened to defend them.

Monday afternoon, Center for Reproductive Rights attorney Caroline Sacerdote said the intervenors failed to do that.

“The reason bans polices patients’ reasons for seeking an abortion,” Sacerdote recapped. “That is unacceptable, and antithetical to patients’ autonomous decision making.”

In November, witnesses called by the intervenors testified that the law ensures providers can’t coerce patients into aborting a fetus with an abnormality. Sacerdote said there’s no evidence that coercion occurs.

Collectively referred to as the “two-trip scheme,” another group of laws requires patients make at least two visits with a mandatory 24-hour waiting period before they can receive care. Intervenor witnesses said the delay ensures patients are making the most informed decisions.

“As delays increase, so do the risks and potential costs of abortion care,” Sacerdote said.

The last group of laws ban all abortion care via telehealth, including prescribing and receiving an abortion pill in the mail. Like the reason ban, the intervenors say the law is aimed at preventing the patient from being coerced by someone else off-camera.

Sacerdote argued that preexisting telehealth laws already account for potential coercion and abortion care shouldn’t be treated differently than other forms of health care regularly conducted via telehealth.

“Coercion is really functioning as a boogey man here, but intervenors have put on no evidence that coercion is actually happening,” she said.

Representing the Republican legislators, attorney Justin Smith said the potentially unconstitutional applications don’t matter because there’s no threat of enforcement.

Isaacson has received no threats from any level of law enforcement, and there’s no history of prior enforcement, Smith argued, so the laws substantively can’t be challenged. But because Petersen is running for state attorney general, the plaintiffs say the threat of enforcement remains, should there be an administration change.

Maricopa County Judge Greg Como asked Smith whether it’s fair to give providers the choice between following the laws and hurting their patients, or violating the law and running the risk of criminal prosecution on a promise that can be overturned at any moment.

“Even though it may feel unfair, that’s the way the law works,” Smith replied.

Hayley Crawford, representing the state of Arizona, argued that the laws don’t need to be challenged as applied because Proposition 139 directly prohibits the enactment of any categorical restriction on abortion access. Instead, any abortion law must be narrowly tailored to achieve the specific state interest of protecting the health of the person seeking care.

“The text is the north star here,” Crawford said. “It tells the court what to do.”

Because the language specifically says the state may not enact, rather than enforce, a categorical restriction, Crawford said the plaintiffs don’t have to wait for enforcement to bring a valid challenge. None of the challenged laws are narrowly tailored, and instead are a “one size fits all” approach, she said.

In order to challenge the laws on their face, though, Smith said the laws have to be unconstitutional in all contexts, not just in potential applications.

“None of these provisions prevent an abortion,” Smith said.

Regarding the telehealth ban, Como asked: “If you remove that choice from their purview, how does that not infringe on the patient’s autonomous decision making?"

“This is a right to abortion, not a right to telemedicine,” Smith answered.

“You don’t think the amendment gives them the right to choose the method?” Como prodded.

Smith later argued that because there are some applications of the laws in which they do not prevent abortion — like laws requiring ultrasounds and the sharing of state-mandated information on alternatives — the laws can’t be said to be unconstitutional as a whole.

Crawford said his reasoning is backwards. Rather, a law having a potential application that doesn’t violate the constitutional amendment doesn’t absolve it of requirements to be narrowly tailored and specific to protecting patient health. In that regard, the laws still fail a facial test, even if not every conceivable application violates the constitution.

Como said he would take at least 30 days to issue a ruling.

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