PHOENIX (AP) — An attorney for the Arizona attorney general’s office told a judge Friday that a 2021 state “personality” law that gives unborn children full legal rights cannot be used to bring criminal charges. against abortion providers.
Deputy Attorney General Kate Sawyer’s comment came during a hearing in which attorneys for the American Civil Liberties Union of Arizona and an abortion rights group representing abortion providers were seeking an injunction blocking the law.
They said abortion providers are concerned that prosecutors will bring charges for crimes such as assault and child abuse under the law, which US District Judge Douglas Rayes refused to block last year.
That decision came before the US Supreme Court’s June 24 ruling that overturned Roe v. Wade, the 1973 case that said women have the right to abort.
The battle over Arizona’s “personality” law, one of several in Republican-led states that aim to give unborn children full rights, is unfolding despite the fact that all abortions in the state have been halted. Arizona providers stopped providing the procedure out of concern that a pre-1901 law banning all abortions could now be enforced, as Republican Attorney General Mark Brnovich stated on June 29.
That law has been blocked since 1973, but Brnovich has vowed to go to court to strike down that injunction.
Attorney Jessica Leah Sklarsky of the Center for Reproductive Rights urged Rayes to block the personality law, arguing that it is unconstitutionally vague on several fronts. One is because she says that unborn children must be “recognized” with all rights, and the other is because it is not clear how it can be reconciled with criminal laws.
“These two flaws independently create all the problems that the vagueness doctrine is meant to prevent,” Sklarsky told Rayes.
He also noted that the attorney general said in his legal papers that “anyone can guess” how state judges might apply the law.
But Sawyer said the law does not affect definitions of person in criminal statutes, and urged Rayes to reject abortion providers’ request to block the personality law.
“There is no indication on the face of the law … that it is intended to create new crimes,” Sawyer said. “In Attorney General Brnovich’s position, the interpretation policies (do not) make any of these applicable to abortion.”
If they’re really worried about possible execution, they should go to state court and ask for a declaratory judgment saying the personality law doesn’t allow criminal charges to be brought, Sawyer said,
“Plaintiffs are not left without recourse here,” Sawyer said.
Rayes, while not indicating how it might be pronounced, seemed disturbed by that response.
“So you’re saying,” Rayes said, “how defendants can address their fear that since anyone can guess they could be prosecuted, they can remove that,” by hiring an attorney and filing a lawsuit.
Rayes did not say when he would issue a ruling.
You will also have to review another part of that law that it did agree to block last year. That part of the 2021 law allows prosecutors to bring felony charges against doctors who knowingly terminate pregnancies solely because the fetuses have a genetic abnormality such as Down syndrome.
The Supreme Court last week acted on a request by Brnovich to lift that injunction and sent it back to Rayes for review in light of his decision to overturn the Roe decision.
States now have broad rights to limit abortion, and many laws limiting or blocking all abortions that were previously blocked can now be enforced. That has led to battles in many states over what laws can now be enforced..
Arizona is in that position, with Republican Gov. Doug Ducey saying a 15-week abortion ban he signed in March. takes precedence over pre-1901 law Brnovich said in effect.
There were just over 13,000 abortions in Arizona in 2020, according to the most recent report from the Arizona Department of Health Services. Of these, less than 650 were performed after 15 weeks of gestation.
JOIN THE CONVERSATION
Anyone can read Conversations, but to contribute, you must be a registered Torstar account holder. If you don’t have a Torstar account yet, you can create one now (it’s free)