PHOENIX (CN) — The Ninth Circuit Monday heard arguments in a case brought by two Phoenix physicians who claim a 2021 Arizona abortion law is unconstitutionally vague and will harm doctors who provide reproductive health care services.
The law at issue is Senate Bill 1457, which made it illegal for doctors to provide abortions solely because of sex, race or a “genetic abnormality” present in the fetus. Paul Isaacson and Eric Reuss, both obstetricians and gynecologists in Arizona, the National Council of Jewish Women (Arizona Section), the Arizona National Organization for Women, and the Arizona Medical Association sued several state lawmakers, saying the bill would impose "drastic and unlawful measures" banning abortion for many Arizona patients and would have "devastating" effects for patients and medical providers alike.
The law doesn’t specify how a doctor should determine whether the presence of a genetic disorder is the sole reason for wanting an abortion, nor does it specify what types of conditions trigger the prohibition. Plaintiffs also fear that the law will stifle First Amendment rights, as they believe both doctors and patients will avoid speaking openly with one another out of fear that discussing a potential genetic condition would make their abortion illegal.
“Because the ban leaves providers to guess at what actions are prohibited, they will have no choice but to err on the side of broadly denying constitutionally-protected care to patients with any indication of a possible fetal anomaly, or risk running afoul of the ban’s severe criminal and licensing penalties,” the plaintiffs said in their 2021 lawsuit.
But an attorney representing Republican lawmakers who are named as defendants in the suit told the three-judge federal appeals court panel Monday that the plaintiffs' claims are essentially moot, as there’s no active threat of enforcement.
“We have no government official that has even hinted at suggesting that they’d enforce this law against anyone, let alone the plaintiffs,” attorney Denise Harle said.
Although Arizona Attorney General Kris Mayes, a Democrat, became the lead defendant in the case when she took office in January, she’s described the the law is unconstitutional and said that she won’t use it or any other law to prosecute patients or doctors who provide reproductive health care services.
“I believe abortion should be legal and safe, and that women should have both privacy and bodily autonomy,” Mayes’ website reads.
Arizona Governor Katie Hobbs, also a Democrat, recently bolstered Mayes’ power over reproductive rights with a controversial executive order in June. The order gives all prosecuting authority over medical providers and patients seeking abortions to Mayes, taking away county attorneys’ ability to prosecute on an individual basis to “provide unity and ensure consistent application of the law across the state.”
Because Mayes has publicly disavowed the law, and no individual county attorneys have said they’ll enforce it, Harle, representing intervening defendants Ben Toma and Warren Peterson, speaker of the Arizona House and president of the Arizona Senate, respectively, said the plaintiffs’ claims have no standing.
“It’s too conjectural,” she said.
U.S. District Judge Douglas Rayes, a Barack Obama appointee, issued a preliminary injunction in favor of plaintiffs in 2021, agreeing on matters of vagueness and undue burden. But on June 24, 2022, the U.S. Supreme Court overturned nearly 50 years of precedent by ruling that the U.S. Constitution doesn’t protect the right to abortion. It also vacated Rayes’ 2021 ruling, remanding the case back to trial court.
Amid a now vastly different legal landscape, plaintiffs motioned again for a preliminary injunction in September 2022, this time focused only on vagueness, but a court denied it in January, after which they appealed to the Ninth Circuit.
Jessica Sklarsky, an attorney with the Center for Reproductive Rights representing the plaintiffs, told the panel that the law just isn’t as straightforward as Harle made it out to be. It doesn't indicate how to determine whether a genetic abnormality is a patient’s sole reason for termination, and that lack of clarity will discourage physicians from providing care, she said.
She added that even if Mayes has vowed not to enforce the law, plaintiffs have more than legal retaliation to worry about. Both the Arizona Department of Health Services and the Arizona Medical Board have the power to revoke licenses from providers who break the law.
“There is a very real threat from those entities,” she said.
Sklarsky disagreed with the trial judge’s finding that vagueness claims can only be brought after a law is enforced against the plaintiff. Vagueness claims can be made preenforcement when there's another constitutional right involved, she said. In this case, she said, such rights include both patients' First Amendment right to speak openly with their doctors and Fourteenth Amendment due process rights.
While abortion in Arizona is still legal in the first 15 weeks of pregnancy, U.S. Circuit Court Judge Andrew Hurwitz, a Barack Obama appointee, reminded Sklarsky that the Arizona Supreme Court plans to revisit a lower court’s ruling that maintains that law. The Supreme Court could decide to ban abortions outright, which would make this case moot.
U.S. Circuit Judges Roopali Desai, a Joe Biden appointee, and Ronald Gould, a Bill Clinton appointee, rounded out the appeals panel.
Follow @JournalistJoeAZ
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
