PHOENIX (CN) — Two reproductive health care providers will have another chance to challenge what they say is an unconstitutionally vague Arizona abortion law after the Ninth Circuit sent their case against the state back to trial court Monday.
Arizona-based obstetricians and gynecologists Paul Isaacson and Eric Reuss went before a Ninth Circuit panel in September to challenge the denial of their motion to halt enforcement of Senate Bill 1457. Enacted in 2021, the bill made it illegal for doctors to provide abortions solely because of the sex, race or a “genetic abnormality” present in the fetus.
The physicians say they’ve “significantly curtailed” their business practices to comply with the law, and now refuse to conduct abortions on any fetuses in which abnormalities will be present.
U.S. District Judge Douglass Rayes, a Barack Obama appointee, in January denied the motion to enjoin enforcement of what’s known as the “reason ban." The doctors didn't have standing, he found, because no enforcement action had been taken against them.
A three-judge Ninth Circuit panel disagreed on Monday and sent the motion back to Judge Rayes for further consideration.
“Plaintiffs’ standing is based on their economic interest in providing medical services,” U.S. Circuit Judge Ronald Gould, a Bill Clinton appointee, wrote in the 23-page order. “That their services include abortion does not alter the fact that plaintiffs make money providing these services and have lost money because the reason regulations restrict what services they can provide.”
Isaacson and Reuss claim the law is unconstitutionally vague because it doesn’t specify how a doctor should determine whether the presence of a genetic disorder is the sole reason for a patient to request an abortion, nor does it specify what types of conditions trigger the prohibition.
The plaintiff doctors fear the law will stifle First Amendment rights: 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.
Arizona's attorney general and each of its 15 counties are named in the 2021 lawsuit. Republican lawmakers Ben Toma and Warren Petersen, speaker of the Arizona House and Arizona Senate president, respectively, intervened as defendants.
Attorney General Kris Mayes, the lead defendant in the case after she took over for former Attorney General Mark Brnovich, has already vowed not to enforce the law. Since Governor Katie Hobbs in a June executive order gave Mayes all prosecuting power over abortions, the defendants say there's no threat of prosecution and the claims are moot.
But the Ninth Circuit panel found that a threat of enforcement still exists, even if Mayes has advised county attorneys against it. The Yavapai County attorney has already advocated for giving power back to counties to enforce abortion bans.
“That at least one county attorney intends to enforce restrictive abortion laws, even when the Attorney General has disavowed and advised against enforcement, is reason enough for Plaintiffs to fear that they too will be targeted,” Judge Gould wrote.
Isaacson and Reuss say they have more than just legal retaliation to worry about: Both the Arizona Department of Health Services and the Arizona Medical Board have the power to revoke the licenses of providers who break the law, and have indicated their willingness to do so.
The panel found that this threat, paired with that of county-wide enforcement, was enough to claim a sufficient imminent injury.
“We are glad that the Ninth Circuit has recognized that we deserve to have our day in court,” said Jessica Sklarsky, an attorney with the Center for Reproductive Rights who represents both physicians. “To say otherwise would have been an egregious failure of the justice system.
“The harms of Arizona’s reason ban are clear — we hope the district court will finally put an end to the climate of fear and confusion caused by this law. We will continue fighting to ensure Arizonans have access to essential abortion care.”
Mayes declined to comment for this story. Neither Toma nor Petersen have replied to requests for comment.
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