Mayes: Effort to revive Arizona’s abortion ban should be dismissed
After the U.S. Supreme Court overturned Roe last summer, pregnant patients and their providers are fearful of breaking the law as they navigate health care crises and the changing legal landscape surrounding abortion bans, according to initial findings of the Care Post Roe study. Photo via Getty Images
The anti-abortion doctor attempting to restore Arizona’s near-total abortion ban has no legal standing in the case and his petition should be rejected by the court, according to Democratic Attorney General Kris Mayes.
Last December, the state’s appeals court upheld a 2022 law that prohibits most abortions after 15 weeks of pregnancy over a near-total ban from 1864. That decision came after a year of turmoil as elected officials and abortion providers in Arizona battled over the procedure’s legality following the U.S. Supreme Court’s ruling that eliminated its status as a constitutional right. But in March, anti-abortion law firm Alliance Defending Freedom asked the Arizona Supreme Court to overturn the appellate court’s opinion and outlaw all abortions except in life-saving emergencies.
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Mayes, whose predecessor Republican Mark Brnovich fought to reinstate the territorial ban, refused to defend his position. The Democrat, a staunch abortion advocate, campaigned on the promise to protect reproductive rights. Instead, the appeal to the state supreme court is headed by Dr. Eric Hazelrigg, medical director for Choices Pregnancy Centers, a chain of anti-abortion clinics in the Valley. Hazelrigg was admitted into the case in the early stages at Brnovich’s request as the “guardian ad litem” for unborn fetuses, a position created in 1971.
Jane Roe brought the original lawsuit in 1971, challenging the state’s abortion ban to gain access to the procedure. A doctor was appointed as guardian ad litem to represent her unborn fetus and “all others similarly situated”. While the case was later abandoned after the high court’s 1973 decision in Roe v. Wade, last year’s events revived it. But circumstances are substantially different, and Hazelrigg doesn’t have the authority to submit an appeal, Mayes said in the most recent filing.
“The Court should be wary of overturning a well-reasoned decision on an issue of great public importance when no proper party seeks to review,” she wrote.
First, Mayes argued, the legal criteria for a guardian ad litem are narrowly defined in state law and Hazelrigg’s position doesn’t meet them. Guardians are appointed to represent the interests of specific plaintiffs under specific conditions, such as for minors when asked to stand trial or if they seek emancipation or an abortion without parental permission. At times, they may be selected to represent several plaintiffs in agreement with each other. Hazelrigg, however, purports to speak for an undefined population of unborn fetuses in Arizona, without regard to whether or not conflicts of interests exist. Some fetuses, Mayes pointed out, suffer life-threatening conditions that guarantee an early death.
“The class of…unborn fetuses plainly is not homogenous,” she wrote. “At a minimum, the variety of medical characteristics and risks unique to any given pregnancy guarantees that not all fetuses share common circumstances and interests.”
And the initial guardian appointment in 1971 itself disqualifies Hazelrigg. At the time, the guardian was charged with representing Roe’s unborn fetus, as well as other fetuses “similarly situated”, but there’s no pregnant woman seeking an abortion in the renewed case. The issue was brought instead by then-Attorney General Brnovich and challenged by abortion provider Planned Parenthood of Arizona.
“There is no plaintiff seeking an abortion, and therefore no individual fetus or ‘similarly situated’ fetuses for (Hazelrigg) to represent. How can there be a guardian when there are no wards?” Mayes asked.
In the end, she said, Hazelrigg is nothing more than a bystander upset with the outcome of the state appellate court’s ruling. And allowing his appeal sets a dangerous precedent for a flurry of future challenges from people with moral objections to court decisions.
Mayes noted that other parties with more standing had the opportunity to intervene in the case but chose not to. Arizona Senate President Warren Petersen and Speaker Ben Toma have both taken up the state’s position to defend laws they helped pass when Mayes refused to, including abortion laws. Besides Hazelrigg, only Yavapai County Attorney Dennis McGrane has filed a petition to represent the state’s interest, which Mayes has asked the court to dismiss as an unwarranted attempt to overrule the state’s actual position, which she represents.
“The fact that no party involved in the law-making process or with a direct interest has sought review in this case should give the Court serious pause about entertaining a request to resurrect an extreme law from a time before women could vote,” she wrote.
In an emailed statement, Planned Parenthood of Arizona agreed with Mayes’ reasoning, adding that the initial conflict between the 2022 law and the 1864 ban has already been satisfactorily resolved by the appeals court. The three judge-panel, confronted with confusion about which law should reign supreme, ruled that women can access elective abortions up to 15 weeks and the 1864 ban applies to non-physicians who might perform abortions and not pregnant women themselves. That ruling harmonized the two conflicting statutes and avoided nullifying decades of abortion regulations passed since the 1864 law was in place.
Hazelrigg, said PPAZ spokesman Andrew Feldman, doesn’t bring up new issues and the state supreme court should refuse to entertain his allegations.
“As we have said before, the intervenor’s petition is a last-ditch effort to ignore the well-reasoned decision of the Court of Appeals — which follows Arizona law — and what is best for Arizonan’s health and well-being,” Feldman said. “There is nothing for the Arizona state Supreme Court to engage in.”
But Kevin Theriot, senior counsel for Alliance Defending Freedom, refuted the claim that Hazelrigg’s appeal is groundless, saying his position as a voice for unborn fetuses is essential.
“Those children deserve an advocate. While Attorney General Mayes has made clear that she is only willing to push extreme policies that benefit abortion businesses, Dr. Hazelrigg is ideally situated to represent the unborn children of Arizona and defend Arizona’s pro-life law,” he said.
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