Arizona Republicans defend abortion laws in state court

PHOENIX (CN) — Arizona Republicans returned to state court Thursday to defend a handful of abortion laws many providers say infringe on the constitutional right to abortion Arizonans voted for last year.

Dr. Steven Nelson, a Phoenix obstetrician-gynecologist who says he has never performed an abortion but regularly cares for women who miscarry, testified on behalf of House and Senate Republicans in support of two restrictions that ban abortion via telehealth and require an ultrasound before an abortion can be administered.

Though Dr. Paul Isaacson, a well-known supporter of Arizona’s 2024 Proposition 139, and other physicians say the state’s ban on abortion telehealth restricts access for some patients, Nelson said Thursday afternoon that in-person screening and care are necessary to preserve patients’ safety and autonomy.

Isaacson sued the state over three groups of laws: the “reason ban,” which prohibits abortions based solely on fetal abnormalities, non-lethal fetal diagnoses, gender or race; the “two-trip scheme” and 24-hour delay, requiring a second clinic visit before an abortion can be performed an an ultrasound 24-hours beforehand; and the telehealth ban, prohibiting both diagnosis and prescription of abortion medication via phone or video call and the provision of abortion medication through the mail.

Isaacson, represented in court by the Center for Reproductive Rights, challenged the state laws in May, soon after he voluntarily dismissed a federal challenge over the reason ban in April.

With Democratic Attorney General Kris Mayes having already disavowed any sort of abortion-related prosecutions of both patients and physicians, the state defendants have sided with Isaacson.

But Senate President Warren Petersen and House Speaker Steve Montenegro intervened, taking over the role of defendant and arguing to keep the laws intact.

Thursday was the second of a three-day evidentiary hearing on Isaacson’s motion for preliminary injunction, though Maricopa County Judge Greg Como said Wednesday morning that he will likely consider this week’s arguments toward a permanent injunction as well, forgoing summary judgment or trial proceedings. He said Thursday that the parties will give closing arguments at a later date rather than the end of the day Friday.

The only witness called by the intervenors Thursday, Nelson told the court that there’s no way to know whether a patient is being coerced or forced into an abortion if he can’t meet with them in person.

“You could have a trafficker standing next to the patient,” Nelson said of a hypothetical phone appointment.

Representing the intervenors, Holtzman Vogel attorney Emily Gould said at least 10% of women who receive abortions later say they were coerced, citing data from the American College of Obstetricians and Gynecologists. Without ensuring a one-on-one environment and reading a patient’s facial expressions and body language, Nelson said, he can’t determine a patient’s true levels of comfort and independent decision making.

“Telehealth prohibits all of this,” he said, adding that he would only provide pregnancy care via telehealth in the most dire of emergency circumstances.

Wednesday, Isaacson and other expert witnesses called by the Center for Reproductive Rights and the American Civil Liberties Union testified that telehealth provides relief to low-income or rural patients who don’t have the means to make two trips to an abortion clinic, often being more than a two-hour drive away in Arizona. They added that the requirement to come in person even once, let alone twice, diminishes a patient’s ability to keep their pregnancy confidential in the case of an abusive relationship.

Nelson clarified that in most cases, the first of the two required visits can be done with a local referring physician before driving to Phoenix, Tucson or Flagstaff for the procedure.

While the plaintiffs’ experts said Wednesday that a pre-abortion ultrasound is unnecessary to estimate gestational age if a patient is early in their pregnancy and accurately tracks their period, Nelson said it’s not that simple.

“Provision of ultrasound is essential to dating,” Nelson declared.

Nelson said at least 60% of patients are incorrect when estimating the date of their last period, often because of implantation bleeding that the patient confuses with period bleeding. Mixed with a lack of medical consensus on what defines a period cycle’s “first day,” he said an ultrasound is the most accurate measurement in nearly all cases, excluding pregnancy via in vitro fertilization, in which the date of conception is already known.

Perhaps more salient is the risk of an ectopic pregnancy, in which a fetus develops outside the uterine wall, often inside a fallopian tube. Nelson said an ultrasound is the only way to detect an ectopic pregnancy, which won’t respond to a typical medication abortion and must be treated more specifically. He said ectopic pregnancies can be asymptomatic up until seven weeks, further requiring an ultrasound before moving forward with care.

It’s unclear how many more witnesses the intervenors will call. The plaintiffs say they will call one rebuttal witness on Friday.

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