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Women's groups fight to block prosecutions under Arizona 'personhood' law

Advocacy groups seek to dodge criminal convictions in light of a possible all-out abortion ban

After hearing arguments Friday, a federal judge in Arizona must now decide if the state can prosecute abortion providers under a new “personhood” law which gives constitutional rights to a fetus in every gestational stage.

Women’s rights groups and medical providers sued Arizona in 2021 to stop the law from going into effect. They filed an emergency motion for an injunction last month after the U.S. Supreme Court struck down Roe v. Wade

The law dictates that state laws “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, subject only to the Constitution of the United States and decisional interpretations thereof by the United States Supreme Court.”

According to the lawsuit, doctors could be prohibiting from providing lawful reproductive care.

“Under the act’s new interpretation of ‘unborn child,’ it is unclear whether clinicians could be criminally prosecuted for endangerment or child abuse when they provide such care, regardless of whether the treatment was necessary to protect the pregnant patient’s health,” the complaint states.

Arizona currently has two abortion laws on the books. One, a pre-Roe ban, bars the procedure, while a recent law bans abortion after 15 weeks except in the cases where it would save the mother’s life. The latter does not take effect until September.

In June, Arizona’s Attorney General Mark Brnovich said that he intends to enforce the pre-Roe law as it supersedes the bill slated to become law in September.

“Our office has concluded the Arizona Legislature has made its intentions clear regarding abortion laws,” he tweeted. “ARS 13-3603 is back in effect and will not be repealed in 90 days by SB1164. We will soon be asking the court to vacate the injunction which was put in place following Roe v. Wade in light of the Dobbs decision earlier this month.”

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Before U.S. District Court Judge Douglas L. Rayes, attorney Jessica Sklarsky said that a federal ruling here could alleviate one of the legal concerns for doctors and women who face peril due to medical complications and required emergency care.

“The circumstances on the ground are such that there is a total ban on abortion in the state right now, without any exception,” Sklarsky told Rayes. “Not even a medical emergency exception. And the existence of this law currently is effectuating just unbelievable harm, putting pregnant people in the states in immense, immense danger.”

Rayes questioned the feasibility of ruling for the plaintiffs when there are conflicting interpretations on which law is currently in effect.

Sklarsky said the court could provide a preemptive ruling to avoid future delays and harm once the 15-week ban is in place.

“If down the line, there is clarity about whether or not the pre-Roe bans are in effect, and let’s assume the situation in which it’s clear that the pre-Roe bans are not in effect. The personhood provision still needs to be enjoined, because it is also preventing physicians in the state from offering care,” Sklarsky said.

During arguments for the lengthy list of defendants including Brnovich, Rayes cited Arizona criminal code, which outlines punishments involving negligent homicide, manslaughter or second-degree murder when a fetus is attached.

Using that as a framework, he asked the defendants to define what it meant to acknowledge on behalf of a child at every stage of development “all rights, privileges and immunities available to other persons in Arizona” if criminal codes already exist recognizing homicides involving fetuses.

Kate Sawyer with the Arizona Attorney General’s Office seemingly dismissed the statute as more of a definition rather than a law to be stringently enforced.

“It means that when appropriate, Arizona statutes need to be construed to recognize the possibility that the rights of an unborn child [exist],” she said. “This question can’t be fully answered out of context.”

Sawyer later dismissed efforts to get the federal court involved since Roe v. Wade put the legality of the subject in the hands of the state, not the federal courts.

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“That would be the function of state court independence,” she said.

Rayes took the arguments under advisement but did not indicate when or how he would rule.

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Daisy Gonzalez-Perez/Cronkite News

In addition to a territorial-era ban, Arizona has laws banning abortions after 15 weeks and granting 'personhood' to fetuses.