Arizona Down syndrome abortion ban challenged
© WikiMedia (James McNellis)
Arizona Down syndrome abortion ban challenged

A group of Arizona plaintiffs filed a lawsuit in federal court on Tuesday seeking to block implementation of two provisions of an abortion law set to go into effect in September.

The suit was filed by the Center for Reproductive Rights and the American Civil Liberties Union on behalf of two physicians who provide abortion services, the Arizona chapters of the National Organization for Women and the National Council of Jewish Women, and the Arizona Medical Association. The plaintiffs seek to block two provisions of SB 1457. The first, called the reason ban, is a ban on abortions for reasons of a diagnosis of Down syndrome or other genetic abnormalities, and the second is the personhood provision, which would grant embryos, fetuses, and fertilized eggs the same “rights, privileges and immunities available to other persons.”

The complaint alleges that the reason ban violates the Due Process clause of the Fourteenth Amendment as well as “decades of binding precedent” that permit women to terminate pre-viability pregnancies. It also calls the reason ban “unconstitutionally vague” in that it does not provide clear details about what genetic conditions would trigger the ban. In addition, the ban would limit patient communication with their medical providers by forcing patients not to explain their reasons for seeking an abortion, which infringes those patients’ First Amendment freedoms.

The personhood provision, on the other hand, “alters the entire Arizona Revised Statutes.” The provision alters so many statutes that address issues of harm to “persons” or “children” that it “makes it impossible for Plaintiffs and their patients to identify whether a vast array of actions … puts them at risk of criminal prosecution.” Like the reason ban, the complaint alleges the personhood provision is unconstitutionally vague because it does not provide adequate notice and would likely lead to arbitrary enforcement against the plaintiffs and their patients.

Emily Nestler, Senior Counsel at the Center for Reproductive Rights, called the law “an affront to our constitutional rights and our ability to make private decisions free from government intrusion.” Cathi Herrod, President of Center for Arizona Policy, an anti-abortion group, said of the law that “We do not discriminate against people with disabilities, nor should we discriminate against them in the womb,” and that the group was confident that Arizona Attorney General Mark Brnovich would successfully defend the law in court.

In April a federal appeals court upheld a similar reason ban in Ohio, while a different appeals court blocked such a ban in Missouri in June. The split between the circuits increases the likelihood that the Supreme Court will step in to review abortion bans based on genetic abnormalities.