Federal judge blocks Arizona’s ‘personality’ abortion law, which gives legal rights to unborn children


PHOENIX — A federal judge in Phoenix on Monday blocked a 2021 state “personality” law that grants full legal rights to unborn children and which abortion rights groups say exposes the providers to prosecution for various crimes.

U.S. District Judge Douglas Rayes said in his written ruling that the groups that sued to block the law are right — anyone can guess, as the state has acknowledged, which criminal laws the providers rights could be infringing if they perform otherwise legal abortions.

“And that’s the problem,” Rayes wrote. “When the punitive and regulatory weight of the entire Arizona code is involved, plaintiffs shouldn’t have to guess whether their conduct is on the right or wrong side of the law.”

At least four other states have similar “personality” laws in effect, including Missouri, Kansas, Georgia and Alabama.

It’s unclear whether abortions that have been halted in Arizona since the U.S. Supreme Court last month ruled that women do not have the constitutional right to abortion would resume. Abortion providers stopped virtually all procedures because a pre-1901 law banning all abortions in effect and other laws created too much risk.

At least in Pima County, where the 1901 law remains stalled, they could be legal, though Attorney General Mark Brnovich is considering asking a court to lift the order and allow it to be enforced.

Rayes had refused to block the personality law last year, but abortion rights groups renewed their demand after Roe v. Wade.

They argued that providers feared being charged with child abuse, assault or a litany of other crimes, and that the law was unconstitutionally vague. There are also concerns about civil and regulatory actions.

The attorney general’s office told the judge that the personality law does not create new criminal laws, but admitted in their court documents that prosecutors and courts may have a different view.

Abortion rights groups hailed the decision.

“The court made the right decision today in preventing this law from being used to create an incredibly extreme ban on abortion,” said Jessica Sklarsky, a lawyer at the Center for Reproductive Rights who pleaded the case. “The Supreme Court’s catastrophic decision overturning Roe v. Wade has sparked chaos on the ground, leaving Arizonans scrambling to find out if they can get the abortion care they need.”

The Arizona attorney general’s office did not immediately respond to a request for comment late Monday.

A lawyer for the attorney general’s office told Rayes during a July 8 hearing that the law does not create any new crimes that could result in charges. The “Personality” law states that all other state laws are to be construed as granting all rights to an unborn child.

The battle over Arizona’s “personality” law is unfolding despite the halt to all abortions in the state. Providers in Arizona have stopped providing the procedure due to fears that a pre-1901 law banning all abortions may now apply, as Republican Attorney General Mark Brnovich said on June 29.

This law has been blocked since 1973, but Brnovich has vowed to go to court to withdraw this injunction. This injunction only applies to one large county and the Attorney General.

The attorney general’s office said in a court filing that Rayes was right last September when he refused to block the law. Rayes had cited a 1989 U.S. Supreme Court decision in which the court declined to block Missouri’s nearly identical law.

Rayes said he has now changed his mind about the relevance of this case.

“The Court is now persuaded that it was wrong to rely on Webster the first time around,” he wrote.

Sklarsky had argued that the personality law was unconstitutionally vague on several fronts and told Rayes that the attorney general had said in his court documents that “anyone guesses” how judges or state attorneys could to apply the law.

Rayes’ ruling stalls law enforcement while challenges precede court, including a possible trial.

“Medical providers should not have to guess whether the otherwise lawful performance of their work could result in criminal, civil, or professional liability solely based on how state licensing, law enforcement and judicial authorities could interpret the policy’s command of interpretation literally or maximalist,” Rayes said.

States now have broad rights to limit abortion, and many laws limiting or blocking all abortions that were previously blocked can now be enforced. This has led to battles in many states over which laws now apply.

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, according to Brnovich, which is in effect.

There were just over 13,000 abortions in Arizona in 2020, according to the latest report from the Arizona Department of Health Services. Of these, less than 650 were performed after 15 weeks of gestation.


Comments are closed.