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Arizona asks high court for leave to enforce ban on selective abortions

The emergency stay application is headed to Washington after the Ninth Circuit turned Arizona down. 

WASHINGTON (CN) — Arizona Attorney General Mark Brnovich raced to the Supreme Court’s shadow docket on Tuesday with an emergency request on behalf of its law banning abortions based solely on the fetus's race, sex or genetics. 

The Arizona Legislature started curbing discriminatory abortions in 2011. Earlier this year, it added to prohibitions focused on the sex or race of a fetus with Senate Bill 1457 — coined the Reason Regulation — to ban abortions on fetuses with genetic abnormalities.

Under the law, genetic abnormalities consist of abnormal gene expression including chromosomal disorder or morphological malformation. People who break this law would be charged with a class 6 felony. The ban does contain exceptions including absolving the woman from all criminal or civil liability, abnormalities that would result in fetal death, or medical emergencies. 

Two abortion providers, two nonprofit corporations and the Arizona Medical Association challenged the law, securing an injunction from a federal judge on Sept. 28 — one day before the law would go into effect. The court found the law imposes an undue burden on abortions and that it was unconstitutionally vague.

Arizona asked but was denied a stay from the Ninth Circuit. On Tuesday, Brnovich asked the Supreme Court to intervene. 

“The Reason Regulation sends ‘an unambiguous message that children with genetic abnormalities, whether born or unborn, are equal in dignity and value to their peers without genetic abnormalities, born or unborn,’” his latest stay application states. 

Brnovich claims the injunction against this regulation puts the state’s other abortion restrictions at risk too. 

“Not only does the district court’s ruling enjoin the Reason Regulation, it calls into question the continued validity of Arizona’s decade-long regulation of race- and sex-selective abortions,” Brnovich wrote. 

Brnovich said the law would not conflict with the court’s precedents on abortion in Roe v. Wade or Planned Parenthood v. Casey

“Even assuming the continued viability of Roe and Casey, the Arizona law at issue in this Application — which prohibits abortion providers from performing genetic-abnormality-selective abortions — does not violate any Fourteenth Amendment right for a woman to obtain an abortion," the application states.

Brnovich cites Justice Clarence Thomas’ writing in Box v. Planned Parenthood of Indiana and Kentucky where he said states should prevent abortions from being used for eugenics. This idea shocked some when Thomas first wrote it, however, it has since gained traction among communities that oppose abortion. 

“Each of the immutable characteristics protected by this law can be known relatively early in a pregnancy, and the law prevents them from becoming the sole criterion for deciding whether the child will live or die,” the Bush appointee wrote in the 2019 case. “Put differently, this law and other laws like it promote a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics.” 

Brnovich claims abortions based on the result of genetic tests do not have any basis within the constitution’s text or the country’s history or traditions. He also uses Justice Neil Gorsuch’s majority opinion from the challenge to Texas’ six-week ban on abortions to claim that the abortion providers cited no limiting principles to their rights. 

“Respondents’ proposed right has no limiting principle — it would apply equally to decisions to abort when genetics predicts low IQ, lack of athletic prowess, or any other characteristic that the medical profession finds undesirable,” Brnovich wrote. 

Brnovich claims denial of the stay would result in irreparable harm because the injunction prevents the state from enacting a law by the legislature, exercising its police power to protect public health, remedying discriminatory practices, and protecting the integrity and ethics of the medical profession. 

The high court has been pummeled with cases related to abortion bans this term culminating in an all-out challenge to Roe and Casey.  

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