PHOENIX — Two doctors who perform abortions and Planned Parenthood Arizona filed suit Tuesday to get a court to declare that the state’s 15-week limit on abortions is unconstitutional and unenforceable.
They say the ban, set by the Republican-controlled Arizona Legislature in 2022, is unconstitutional under the terms of Proposition 139, which was approved last month by 61% of Arizona voters.
Prop. 139, a constitutional amendment, bars the state from adopting or enforcing any laws that deny, restrict or interfere with a fundamental right of abortion prior to fetal viability. Viability is considered somewhere between 22 and 24 weeks of pregnancy.
The proposition has an exception allowing state intervention in cases of a “compelling state interest.”
But Attorneys for the doctors, Eric Reuss and Paul Isaacson, and Planned Parenthood argue that has a two part-test. First, they said any regulations or laws would have to be adopted for the limited purpose of “improving or maintaining the health of an individual seeking abortion care.” And, second, under Prop. 139, any regulations or laws can “not infringe on that individual’s autonomous decision making.”
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A prohibition on abortions beyond 15 weeks, they said, clearly does not meet that standard.
“The ban deprives plaintiffs’ patients of their fundamental right to abortion under the Arizona Constitution, causing them to suffer significant constitutional, physical, psychological, and other harms,” the lawsuit states.
Proposition 139 itself does not automatically void the 15-week law and the penalties against performing abortions beyond 15 weeks. Both Planned Parenthood and Isaacson have said they will not resume providing abortions beyond that point until there is a clear ruling.
Now the question is who, if anyone, will defend the law.
Democratic Attorney General Kris Mayes already stipulated that her office agrees the 15-week ban is unconstitutional under Proposition 139. That is crucial as the legal papers name the state of Arizona as a defendant, and it is Mayes’ job to defend challenges to Arizona law.
That written stipulation also said her office won’t take action against any individual accused of violating the 15-week law while the case is being litigated. Even if there is a ruling allowing the 15-week law to remain in effect, Mayes said she won’t pursue charges for at least 30 days, to allow for appeals.
But that doesn’t mean there will be no challenges to the litigation.
Arizona law specifically allows the Legislature to intervene any time there is a challenge to the legality of a state statute.
“We will pursue every legal option available to protect the sanctity of life and the health of the mother and the baby,” said Senate President Warren Petersen, a Gilbert Republican.
But, when questioned about whether that means defending the law, Petersen would say only that he is “looking into every option right now.”
Questions to Cathi Herrod, president of the anti-abortion Center for Arizona Policy, yielded a similar response.
“No decision has been made on any attempt to intervene in the lawsuit,” she said. “That will take further analysis and consideration.”
But Herrod, who is an attorney, already is sketching out reasons she contends banning abortions beyond 15 weeks fits within the definition of “compelling state interest.”
“An abortion after 15 weeks increases the risk of a woman having significant complications, including infection, heavy bleeding, and injury to the uterus,” she said.
The lawyers suing to void the 15-week law, however, seek to frame the issue in a different way: the right of Arizonans to make “one of the most personal intimate decisions a person can make about their body, their health, and their life.”
That, by itself, may not be enough to convince a court to preemptively block enforcement of the 15-week law. So the attorneys are arguing that the plaintiffs, all of whom perform abortions, have a legitimate right to contest the ban.
The law spells out that any doctor who intentionally or knowingly violates the 15-week ban is guilty of a Class 6 felony, which carries a presumptive sentence of one year in state prison.
Criminal liability aside, state law also allows the Arizona Medical Board to conduct independent investigations to determine if a physician has engaged in “unprofessional conduct,” something that includes violating any federal or state law and, specifically, committing a felony. The board then has the power to suspend or revoke a doctor’s license and impose penalties of up to $10,000 per violation.
“The ban penalizes health care providers who assist their patients … forcing them to stop providing the critical care their patients seek in accordance with their best medical judgment under the threat of criminal prosecution, severe civil sanctions, and revocation of their medical licenses,” the lawsuit says.
The plaintiffs, in prepared statements, detailed their reasons for filing suit.
“I believe that health care decisions should be made in the exam room, between a patient and their doctor, not dictated by political agendas,” said Isaacson. “… The 15-week ban forces us to withhold essential care from patients, even when their health or future is at risk.”
Dr. Jill Gibson, chief medical officer of Planned Parenthood Arizona, said she has first-hand knowledge of how abortion bans and restrictions “force people to carry forced pregnancies, seek to self-manage their abortion when they would have preferred to access care within the health care system, or bear the financial burden of traveling hundreds or thousands of miles for care.”
Nothing in the new lawsuit, however, deals with the post-Prop. 139 legality of a host of other state laws and restrictions on abortion that also remain on the books.
Some of these are procedural, such as a 24-hour waiting period after a woman is examined and informed about the procedure before a pregnancy can be terminated. There also are requirements for an ultrasound and for state licensing of abortion clinics.
There are other bans, as well.
One bars a doctor from terminating a pregnancy if he or she knows that the woman is seeking the procedure “solely because of a genetic abnormality of the child.” Another bars abortions sought “based on the sex or race of the child or the race of a parent of that child.”
Arizona also has a separate statute requiring the consent of a parent or a court for a minor to get an abortion. Mayes has said there is no clear answer to whether that will survive after Proposition 139 takes effect, saying that “probably will be litigated.”
Get your morning recap of today’s local news and read the full stories here: tucne.ws/morning
Howard Fischer is a veteran journalist who has been reporting since 1970 and covering state politics and the Legislature since 1982. Follow him on X, formerly known as Twitter, Bluesky, and Threads at @azcapmedia or email azcapmedia@gmail.com.
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