Abortion-rights advocates filed a lawsuit Tuesday seeking to overturn a new Arizona law that would ban abortions because of Down syndrome or other genetic abnormalities, the latest legal fight over reproductive rights under a judiciary that moved to the right during Donald Trump's presidency.
The lawsuit also challenges a “personhood” provision that confers all the rights of people on fertilized eggs, embryos and fetuses. The law is set to take effect Sept. 29 if it's not blocked by a judge.
“You have a constitutional right to an abortion, and that right does not take into account your reason for having an abortion,” said Emily Nestler, senior counsel at the Center for Reproductive Rights. “Politicians should not get to interrogate people’s reasons for seeking an abortion.”
Emboldened by the U.S. Supreme Court’s turn to the right during Trump’s term, Republican-controlled legislatures around the country have embraced efforts to further restrict or outright ban abortion. States enacted more than 90 new restrictions on abortion this year, the most in decades, according to the Guttmacher Institute, which supports abortion rights.
The high court in May signaled its willingness to reconsider Roe v. Wade, the 1973 ruling establishing a nationwide right to abortion before a fetus could survive outside a mother’s womb, generally around 24 weeks. The justices agreed to consider a Mississippi law that seeks to ban abortions after 15 weeks.
The Arizona lawsuit challenges key provisions of SB1457, which was signed by Republican Gov. Doug Ducey in April after it passed the GOP-controlled Legislature in party-line votes.
The measure allows prosecutors to seek felony charges against doctors who provide abortions when they know it’s solely because of a genetic abnormality in the fetus. Anyone who helps raise money or pay for such an abortion also could be charged. Doctors also can lose their medical license, and any medical or mental health professionals who fail to report such an abortion could be fined $10,000.
The lawsuit says the law will have a chilling effect on the communications between doctors and patients, preventing physicians from counseling women about a difficult decision. And it says the threat of criminal penalties will discourage abortions for any reason if the doctor has cause to suspect the fetus could have a genetic abnormality.
Abortion opponents say the bill ensures children diagnosed with disabilities before birth don’t face discrimination. Cathi Herrod, president of the anti-abortion group Center for Arizona Progress, which lobbied for the bill, said she was confident it will be upheld in court.
“As a society, within our laws we do not discriminate on born individuals due to genetic conditions, neither should we discriminate against unborn children solely because of genetic conditions,” Herrod said. Arizona already bans abortions based on race and sex, so it's not unprecedented to ban abortions based on the genetic abnormality reason, she added.
Down syndrome abortion bans have gained traction recently in several GOP-controlled states, most recently in Arizona and South Dakota. Though the laws are on hold in several states, the Sixth U.S. Circuit Court of Appeals has allowed Ohio and Tennessee to enforce them.
Democratic Gov. Roy Cooper of North Carolina this year vetoed a Down syndrome abortion ban passed by the GOP-controlled Legislature.
The lawsuit was filed in U.S. District Court in Phoenix by the Center for Reproductive Rights and the American Civil Liberties Union on behalf of two doctors who perform abortions, the National Council of Jewish Women, the National Organization for Women and the Arizona Medical Association.
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