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Arizona doctors ask high court to maintain pause on law banning selective abortions

Doctors hope the Supreme Court will turn down an application to enforce a ban on selective abortions

Doctors fighting an Arizona law banning abortions based solely on a fetus’s race, sex, or genetics asked the Supreme Court on Tuesday to allow an injunction on the law to stand. 

Last week, Arizona Attorney General Mark Brnovich filed an application on the court’s shadow docket asking it to reinstate Senate Bill 1457, otherwise known as the Reason Regulation. The legislation was passed by the Arizona legislature earlier this year but was immediately blocked before it could be enforced. 

The ban prevents doctors from providing abortions based on genetic abnormalities that consist of abnormal gene expression including chromosomal disorder or morphological malformation. Doctors who break the law face a class 6 felony. 

The doctors were joined by two nonprofit corporations and the Arizona Medical Association in their challenge to the law. Jessica Sklarsky, an attorney from the Center for Reproductive Rights representing the doctors, said the state was asking for extraordinary relief for a status quo injunction. 

Sklarsky said the law was internally inconsistent citing the penalty to doctors that have “some knowledge” that an abortion they provide is “to some degree motivated” by genetic abnormalities, which she claims is “a nebulous term that, as statutorily defined, requires physicians to make difficult-to-impossible predictions about the origin and future course of potential fetal conditions.” 

Sklarsky also accuses the state of trying to rewrite the law within their stay application and says if the court offered relief, it would further complicate the already vague law. 

“Defendants focus their request entirely on a single subsection, asking this Court to ignore the vast majority of the statute’s interlocking operative terms, including its problematic definitions and internally inconsistent requirements — all of which were central to the district court’s well-reasoned decision,” Sklarsky wrote. “But this Court cannot rewrite the statute in the course of a stay application. And granting a stay of one provision would only exacerbate the vagueness problems that plague the law, while imposing severe burdens on Plaintiffs, their patients, and their members’ patients.” 

A federal judge granted the doctors an injunction on the law on Sept. 28 — a day before it went into effect — finding the law imposed an undue burden on abortions and that it was unconstitutionally vague. The state then appealed to the Ninth Circuit where they were denied a stay. 

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The state claims abortions based on genetic tests are not protected within the Constitution’s text or the country’s history or traditions. 

“The Reason Regulation sends ‘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,’” Brnovich’s stay application states. 

Sklarsky said Arizona has not proved it would suffer irreparable harm from the injunction but the doctors, on the other hand, have. 

“The district court found Defendants’ alleged harms conclusory and abstract, whereas Plaintiffs’ harms were grounded in fact and law, and far outweighed any purported harm to Defendants,” the brief states. 

This is not the first abortion-related case to come across the court’s docket this term. The justices recently ruled in a Texas case that bans abortions after six weeks. However, the fate of both these cases and others may be all but moot when the court rules in an all-out challenge to the right to abortion next year.

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