Abortion rights protesters climb atop a statue near the Arizona Capitol building in Phoenix on June 24, 2022. Photo by Michael McDaniel | Courthouse News
PHOENIX (CN) — A federal judge in Arizona decided Monday that the state should not be able to prosecute abortion providers under the “personhood” law that extends constitutional rights to fetuses at every gestational stage.
U.S. District Court Judge Douglas L. Rayes said Arizona’s legal definition of a person conflicts with what a fetus is in every legal sense.
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His decision stems from a 2021 case where women’s rights groups and medical providers sued Arizona to stop the “personhood” law from going into effect. They filed an emergency motion for an injunction last month after the U.S. Supreme Court struck down Roe v. Wade.
The 2021 law, which Rayes described as an “interpretation policy,” dictates that state laws “shall be interpreted and construed to acknowledge, on behalf of an unborn child at every stage of development, all rights, privileges and immunities available to other persons, citizens and residents of this state, subject only to the Constitution of the United States and decisional interpretations thereof by the United States Supreme Court.”
According to the lawsuit, doctors could be prohibited from providing lawful reproductive care.
“Under the act’s new interpretation of ‘unborn child,’ it is unclear whether clinicians could be criminally prosecuted for endangerment or child abuse when they provide such care, regardless of whether the treatment was necessary to protect the pregnant patient’s health,” the complaint states.
Rayes said the purpose of a preliminary injunction was to preserve the status quo in order to avoid harm while state litigation is pending.
The litigation he is referring to is the current legal gray zone the state is in due to the two conflicting abortion laws in its books. The first is a pre-Roe ban, which bars abortion procedures, while a recent law bans abortion after 15 weeks except in cases where it would save the mother’s life. The latter does not take effect until September.
In June, Arizona’s Attorney General Mark Brnovich said that he intends to enforce the pre-Roe law as it supersedes the bill slated to become law in September.
“Our office has concluded the Arizona Legislature has made its intentions clear regarding abortion laws,” he tweeted. “ARS 13-3603 is back in effect and will not be repealed in 90 days by SB1164. We will soon be asking the court to vacate the injunction which was put in place following Roe v. Wade in light of the Dobbs decision earlier this month.”
On Monday, Rayes said the vagueness of the personhood law could fly in the face of 50 years of precedence, and it stops short of legally defining its purpose.
“[The] interpretation policy offers no guidance on what it means to ‘acknowledge’ the equal rights of the unborn, especially if acknowledgment means something less than including the unborn within the express definition of ‘person,’” he wrote.
Rayes also said the law balks at redefining what a person is, referencing Arizona’s current legal definition and criminal code definitions of a person.
“The interpretation policy stops short of explicitly amending any statutory definition of ‘person,’” he said. “But that begs the question: if the interpretation policy does not change the legal definition of ‘person’ in Arizona, then what does it do? How does one ‘acknowledge’ the equal rights of the unborn when the aforementioned definitions of ‘person’ appear to exclude the unborn from the protection of vast swaths of Arizona law?”
Additionally, Rayes said the law is a justified concern for abortion providers and the criminal code recognizes the medical abortion of a fetus as an alibi to criminal statutes.
“These concerns are not irrational,” he wrote. “For example, although Arizona’s homicide statutes apply to the unborn, these laws also include explicit exemptions for lawful abortions, meaning these statutes make it crystal clear that someone lawfully performing an abortion is not committing murder.”
In concluding, Rayes acknowledged the defense’s concerns about state sovereignty in matters of personhood and left it up to the state to enact a more tangible, less vague law.
“Finally, a preliminary injunction will not leave Arizona hamstrung,” he wrote. “If Arizona wants to extend legal protections to the unborn — including, it seems, before medically recognized conception — nothing in this order precludes it from doing so clearly and explicitly, by amending the definition of ‘person’ in those discrete statutes where Arizona wants the change to operate, and by clearly and explicitly stating whether those applications exempt otherwise lawful abortion care.”
According to Rayes, the injunction will prevent the state from retroactively using the law to initiate criminal proceedings for those who perform otherwise lawful abortions. The ruling is likely to stay in place until there is some clarity revolving around abortion law in Arizona.
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