Brnovich asks judge to let him enforce abortion law

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Attorney General Mark Brnovich wants a judge to let him start enforcing a law prohibiting certain abortions despite a federal court ruling which found it unconstitutional.

In new legal filings, Brnovich is telling U.S. District Court Judge Douglas Rayes that he misinterpreted the law when he barred the state last month from making criminals out of doctors who perform abortions knowing the woman’s reason is a genetic fetal defect. And he contends that nothing in U.S. Supreme Court precedent, going back to the historic 1973 ruling of Roe v. Wade, guarantees a woman has a right to terminate a pregnancy for any reason she wants, even before a fetus is viable.

He also pointed out that the high court is set to review the issue of whether a state can ban pre-viability abortions, though Brnovich conceded that, for the moment, there is no ruling to that effect.

Instead, Brnovich is giving Rayes a laundry list of reasons why the state has a “compelling interest” in keeping doctors from terminating pregnancies when they are aware that the woman’s sole reason for not wanting the baby is a genetic defect. That includes “eradicating historical animus and bias against persons with disabilities” and sending a strong message that even as genetic testing advances “the state will send a message that it will not permit those advances to result in eugenic abortion.”

And Brnovich argues that ensuring the birth of more people with disabilities “will ensure that the existing disability community does not become starved of resources for research and care for individuals with disabilities.”

He also said Rayes has to consider the “irreparable harm” of preventing the state from enforcing the law while Brnovich asks the 9th Circuit Court of Appeals to overturn the ruling.

“While the law is enjoined, doctors can continue performing abortions knowing that the abortion is sought solely because of a genetic abnormality,” the attorney general said. “This certainly constitutes irreparable harm.”

All of that, Brnovich said, should allow the state to halt these abortions and prosecute doctors who perform them while he appeals the trial judge’s decision.

But getting Rayes to give the go-ahead to enforce a new law he blocked just last month could prove difficult.

The judge specifically ruled that the statute, approved by the Republican-controlled legislature, places an undue burden on women. And that, the judge said, outweighs any interest the state claims to have in promoting life or prohibiting discrimination.

Hanging in the balance is a law that makes it a felony for anyone who performs an abortion knowing that the reason is “solely because of a genetic abnormality of the child.” Anyone found guilty can be sentenced to a year in state prison, though there is no penalty on the woman.

Rayes found several problems with the law, starting with the question of at what point a doctor is presumed to know the reason the woman wants to terminate the pregnancy and therefore would be breaking the law. The judge pointed out that it often is not black and white.

“For example, patients sometimes report that they are terminating a pregnancy because they lack the financial, emotional, family, or community support to raise a child with special and sometimes challenging needs,” Rayes explained. “If a doctor accepts money to finance such an abortion … can that doctor face felony prosecution or a civil lawsuit?”

More significant is that conclusion the law places an undue burden on women seeking to terminate a pregnancy.

“A woman has a constitutional right to choose to terminate her pregnancy before the fetus is viable without undue interference by the state,” Rayes said, citing prior court rulings.

Rayes did agree with Brnovich on one point: The law is not an absolute bar to such abortions. The state argued that a woman, denied an abortion after telling a doctor the reason, can simply go to another and withhold the information or lie.

But the judge said that doesn’t make the statute any more legal — or enforceable.  He said the law, rather than encouraging women to choose to give birth, which is a permissible goal, instead “is designed to thwart them from making any other choice.”

In asking Rayes to stay his ruling, Brnovich also claims that the injunction the judge issued can be justified only if the law operates as a substantial obstacle to abortion “in a large fraction of the cases.” The attorney general claims there is no evidence that it actually would create such an obstacle for any woman, let alone a large fraction.

Brnovich said there is no record of how many women in Arizona terminate their pregnancy solely because of a genetic defect. He cited data from the Department of Health Services that no more than 191 women voluntarily reported that they were seeking an abortion for that reason.

Rayes, however, said it is Brnovich who is citing the wrong standard.

He said the number of women there are in Arizona — or even the number seeking an abortion — is irrelevant as the new law would not affect them at all. What is relevant, Rayes said, is the percentage of women who want an abortion due to a fetal genetic defect but would be denied it.

And he rejected the argument that this is based on pure numbers.

“A court may make a qualitative judgment based on the evidence and common sense and need not conduct a mathematical determination of the fraction,” the judge wrote in his ruling.

Rayes has not set a date to rule on Brnovich’s request to enjoin his own ruling.

Brnovich, a Republican candidate for U.S. Senate, has staked out a strong anti-abortion position, even to the point of having his office write legal briefs urging the U.S. Supreme Court to uphold bans and restrictions imposed by other states. He even signed onto a legal brief urging the justices to overturn the Roe v. Wade.