Arizona Asks Supreme Court to Reinstate Abortion Law - The Wall Street Journal

WASHINGTON—The state of Arizona asked the Supreme Court Tuesday for an emergency order reinstating a law passed earlier this year that imposes criminal penalties for abortions performed because of fetal genetic abnormalities.

Lower courts, noting the law likely violated Supreme Court precedents entitling women to end unwanted pregnancies, have blocked enforcement of the measure while a challenge filed by abortion providers and allied nonprofit organizations proceeds.

“This Court has never otherwise recognized the purported right at issue—a right to race-, sex-, or genetic-selective abortions,” the state’s brief says, although only the genetic-abnormality provision is at issue in the case.

Arizona’s application is the latest in a series of abortion cases reaching the Supreme Court, where a recently expanded conservative majority has expressed deep skepticism of Roe v. Wade, the 1973 decision recognizing women’s right to end unwanted pregnancies before fetal viability.

Earlier Tuesday, abortion providers in Texas asked the court to expedite issuance of its Friday ruling that permitted their suit challenging that state’s ban on ending pregnancies after six weeks’ gestation to proceed against officials of the state medical board and other licensing agencies. The Texas law remains in effect and the providers hope that expediting the proceedings could help them more rapidly obtain at least a partial victory at the trial court. The state of Texas opposes the providers’ application.

In another case, heard Dec. 1, Mississippi asked the court to overrule Roe altogether in arguing to reinstate its ban on abortions after 15 weeks, which lower courts found in violation of Roe and a 1992 case that narrowed but didn’t extinguish it holding, Planned Parenthood v. Casey.

In 2011, Arizona outlawed abortions performed because of the race or sex of the fetus. This year, the state legislature added genetic abnormalities to that ban, finding “that in the United States and abroad fetuses with Down syndrome are disproportionately targeted for abortions.” The act sends, the legislation says, “an unambiguous message that children with genetic abnormalities, whether born or unborn, are equal in dignity and value to their peers without genetic abnormalities, born or unborn.”

The statute also indicates that should Roe be overruled, abortion immediately will be outlawed in Arizona. The measure declares that “an unborn child at every stage of development, [holds] all rights, privileges and immunities available to other persons, citizens and residents of this state,” limited only by the Constitution and its interpretation by the Supreme Court.

With some narrow exceptions, the Arizona law imposes penalties, fines, imprisonment and civil liability for performing or financing prohibited abortions; women who undergo the procedure face no punishment.

Two physicians, along with the Arizona Medical Association and state sections of the National Council of Jewish Women and the National Organization for Women, sued to invalidate the 2021 measure. In September, a federal judge in Phoenix blocked enforcement of much of the law while that suit proceeded.

“Arizona law does not offer workable guidance about which fetal conditions bring abortion care within the scope of these provisions,” U.S. District Judge Douglas Rayes found. Moreover, he wrote, physicians may not be sure of a patient’s true motivation in obtaining the procedure.

“At what point can a doctor be deemed to ‘know’ or ‘believe’ what is in the mind of a patient?” he wrote. “This problem is exacerbated by the reality that the decision to terminate a pregnancy is a complex one, and often is motivated by a variety of considerations, some of which are inextricably intertwined with the detection of a fetal genetic abnormality.”

Last month, the Ninth U.S. Circuit Court of Appeals, in San Francisco, without comment declined to reinstate the law during the litigation, prompting Arizona’s application to the Supreme Court.

Arizona’s application was filed with Justice Elena Kagan, who oversees the Ninth Circuit. She is likely to request a response from the plaintiffs before deciding whether to act on her own or refer the matter to the full court. There is no deadline for the Supreme Court to act, but emergency applications often are decided within days or weeks.

Write to Jess Bravin at [email protected]

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source: https://www.wsj.com/articles/arizona-asks-supreme-court-to-reinstate-abortion-law-11639514794

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