A federal judge granted abortion providers a preliminary injunction against a controversial Arizona abortion law hours before it was set to go into effect on Wednesday to criminalize abortions performed due to genetic issues of the fetus.
U.S. District Judge Douglas Rayes issued the injunction Tuesday in a ruling that threw out two provisions of the law that brings felony charges against doctors who knowingly abort a fetus with genetic issues, such as Down syndrome, for being unconstitutionally vague.
The provisions in question are the Notification Provision, which requires the doctor to tell their patients that it is prohibited to abort a fetus due to a genetic abnormality, and the Criminal Liability Provision, which prohibits a provider from performing such an abortion if they know it is due to a genetic abnormality.
Rayes wrote in his 30-page ruling that nowhere in the law does it outright prohibit abortions because of a fetal genetic abnormality, nor does it prohibit women from receiving pre-viability abortions because of such an issue. Instead, it prohibits a provider from performing such an abortion if the provider knows it is because of a fetal genetic abnormality.
“At what point can a doctor be deemed to ‘know’ or ‘believe’ what is in the mind of a patient?” Rayes wrote. “This problem is exacerbated by the reality that the decision to terminate a pregnancy is a complex one, and often is motivated by a variety of considerations, some of which are inextricably intertwined with the detection of a fetal genetic abnormality.”
Rayes continued that the Notification Provision of the law will make it less likely for pregnant women seeking an abortion to say it is because of a fetal genetic issue. He also said that the provision requires providers to mislead their patients into believing that their constitutionally protected right to an abortion is unlawful.
“The only reasonable inference that the court can draw is that the purpose and intended effect of the Notification Provision is to make it less likely that a woman, though desiring to terminate her pregnancy because of a fetal genetic abnormality, will successfully exercise her right to do so,” he said.
Rayes, however, let stand a provision that abortion providers sought to have thrown out for classifying fetuses, embryos and fertilized eggs as people.
Emily Nestler, senior counsel at the Center for Reproductive Rights, said they were “incredibly relieved” with the ruling.
“People should not be interrogated about their reason for seeking an abortion,” Nestler said in a statement. “There are no right or wrong reasons.”
Arizona Gov. Doug Ducey had signed the law in April amid a movement within the Republican Party to limit abortions throughout the country.
At the time he said there is “immeasurable value” in all life regardless of their genetics.
“We will continue to prioritize protecting life in our preborn children, and this legislation goes a long way in protecting real human lives,” he said in a statement.
The rule was challenged in August by Arizona abortion providers and abortion advocates.
Cathi Herrod, president of the anti-abortion Center for Arizona Policy, said it was only the first review of the law in federal court with more to come.
“We remain confident the law will be upheld and ruled enforceable in its entirety,” she said in a statement. “It’s a shame the abortion industry is standing in the way of protecting the most vulnerable from discrimination and life itself.”
According to the the abortion advocacy Guttmacher Institute, there have been 561 abortion restrictions including 165 abortion bans introduced across 47 states for this year as of early June with 83 of those restrictions having been enacted.
The organization said the number of restrictions enacted in that time is “unprecedented.”
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