Abortion rights groups ask court to block Arizona's 'fetal personhood' law after Roe ruling

Ray Stern
Arizona Republic

Corrections & Clarifications: A previous version of this article misspelled Marcela Taracena's last name.

Arizona abortion rights groups, reacting to Roe v. Wade being overturned, have filed an emergency motion in federal court to block a state law granting rights to fetuses.

Fear that the 2021 law will be interpreted to charge physicians and health care workers who provide abortion services with assault, child abuse or other crimes led at least two doctors to halt abortion services until a judge acts, the motion states.

"Right now we see this as the most immediate threat that needs to be challenged," Marcela Taracena, ACLU spokesperson, said.

The motion seeking an injunction against the state was filed Saturday. The ACLU was uncertain when the motion would be answered.

The request for action comes amid political turmoil over the U.S. Supreme Court ruling in Dobbs v. Jackson Women's Health Organization, the Mississippi case justices used to strike down Roe v. Wade.

Arizona is considered to be among the states most affected by the decision because of its anti-abortion laws, including one enacted before Arizona was a state that mandates prison time for abortion providers.

Hours after the Friday morning ruling, eight of nine licensed abortion providers in Arizona stopped performing abortions, and the status of the ninth clinic was not immediately available. 

At the Arizona Capitol later in the evening, state troopers used tear gas to disperse a crowd of protesters, creating a security alert in the state House and Senate where lawmakers were attempting to finish up this year's legislative session. Similar protests erupted across multiple states.

The 1973 Roe v. Wade ruling banned states from prohibiting abortions in the first and, with some exceptions, second trimesters of pregnancy. Friday's opinion puts the question of abortion rights to individual states.

The ACLU and the Center for Reproductive Rights filed the motion in the U.S. District Court of Arizona on behalf of Arizona abortion doctors Paul Isaacson and Eric Reuss and three organizations: the Arizona Medical Association, the National Council of Jewish Women Arizona and the Arizona National Organization of Women.

Without the protections of Roe and Casey (a related Supreme Court decision from 1992), the plaintiffs argue in the emergency motion, the "interpretation" clause of the Arizona law that passed last year can now potentially be enforced by prosecutors.

The clause states that "the laws of this state 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." It provides exceptions for in vitro fertilization and women who indirectly harm a fetus by failing to maintain optimal health throughout the pregnancy.

Besides granting personhood to fetuses, the law, which began as Senate Bill 1457, banned abortions sought because of Down syndrome, cystic fibrosis or other conditions that the law calls "genetic abnormalities."

Isaacson, Reuss and the three groups sued the state and individual county attorneys last year, resulting in U.S. District Court Judge Douglas L. Rayes blocking that part of the law in September.

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But he didn't bar the state from implementing the fetus personhood provision, saying it was too early and he would wait to see how it might be enforced and interpreted by Arizona judges.

The plaintiffs in the emergency motion insist that it's time to revisit the question.

They noted that when Rayes asked the defendants in the case if the law's interpretation provision could be used to subject an abortion provider to criminal prosecution under several Arizona statutory provisions, the lawyers for the state answered that only "Supreme Court precedent" prevented it.

In exhibits attached to the emergency motion, Isaacson and Reuss explain their fear of how the provision could be used.

"Because it is impossible for me to know whether the care I am providing is lawful or unlawful, or how to ensure that my conduct remains within what is permitted by law, I have stopped providing abortion care altogether," Isaacson said in his statement.

The law's "Interpretation Policy" should be struck down as unconstitutionally vague, the plaintiffs argue in the emergency motion. The policy mandates that "hundreds of civil and criminal provisions be 'interpreted and construed' to 'acknowledge' the rights of fertilized eggs, embryos, and fetuses at any stage of development," yet provides no guidance to authorities on how to apply the penalties in the context of abortion.

Arizona law prevents vague laws in order to prevent arbitrary action by police and prosecutors that could leave people "to guess whether or not the Interpretation Policy can be used to criminalize the receipt and provision of abortion care. Yet that is exactly what the State is doing," the motion states.

While the provision could outlaw all abortion in Arizona, the motion also states in a footnote that the interpretation provision "could just as easily have no substantive effect."

Possibly, the provision could be "harmonized" with other laws in Arizona that suggest abortions are legal, such as licensing providers, or even with the entire 2021 law itself, which banned some abortions while seeming to allow others, the motion states.

Despite the lack of clarity, doctors don't want to take a legal risk "to discover which reading of the Interpretation Policy prevails," the motion states.

ACLU representatives would not say if the clinics would restart their abortion services if Rayes strikes down the fetal personhood provision, in part because such a ruling would not determine whether the pre-statehood ban could still be enforced.

Arizona Senate Republicans issued a news release after Friday's Supreme Court ruling stating that the pre-statehood law was now in effect.

Cathi Herrod of the conservative Center for Arizona Policy also has argued that without Roe v. Wade, the old law threatening abortion providers with prison time would come into play.

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State Attorney General Mark Brnovich, however, said after the GOP statement that no one should draw conclusions yet about anti-abortion enforcement in Arizona and that his office was performing a legal analysis based on the Supreme Court's opinion.

Victoria Lopez, an ACLU lawyer in the case against the 2021 law, said Arizona's "problematic" laws made it difficult to know when doctors would be safe.

"Folks will continue to proceed with caution" even if Rayes blocks the personhood provision, Lopez said. "We will just continue to monitor how the state responds to the pre-Roe ban. It's very unpredictable."

Reach the reporter at rstern@arizonarepublic.com or 480-276-3237. Follow him on Twitter @raystern.