The American Civil Liberties Union of Arizona and an abortion rights group filed an emergency motion Saturday seeking to block a 2021 Arizona “personhood” law that they worry can be used to halt all abortions in the state.
The move comes a day after the U.S. Supreme Court overturned the nearly 50 year old Roe v. Wade decision that held that women have a constitutional right to an abortion. The decision means a series of Arizona laws that had been unenforceable would now go into effect.
They include a law that goes into effect in September banning abortions after 15 weeks of pregnancy and another dating to back more than 100 years that makes all abortion illegal.
Saturday's court action tries a new tack to an existing challenge to the 2021 law, which made abortion illegal if it was sought because of a genetic abnormality and also added the personhood provision.
A U.S. District Judge in Phoenix blocked part of the genetic abnormality law last fall but refused to put on hold the “personhood” provision. That part says the state will interpret all laws to confer the rights of people on unborn children, subject to the Constitution and U.S. Supreme Court rulings.
The ACLU and the Center for Reproductive Rights said the personhood provision puts medical providers and pregnant women at risk of prosecution. They said providers could face charges under a host of laws, including child endangerment or assault if the statute stands.
"Because of the uncertainty around the personhood statute, providers in Arizona have suspended providing abortions at this point,” said Legal Director for ACLU of Arizona, Jared Keenan.
Keenan said they need clarity from the court but also the Maricopa County Attorney’s Office.
”Frankly, Arizonans entirely deserve a clear answer, a yes or no, about whether the most powerful prosecuting agency in the state is going to use that immense power to criminally prosecute patients and doctors for their healthcare decisions, for their abortion care decisions,” said Keenan.
The law was championed by the Center for Arizona Policy, a powerful group that pushes for religious freedom, abortion restrictions and other social conservative policies.
Cathi Herrod, the group's president, said Saturday that the Legislature passed the law to ensure unborn children have all full rights if the court overturned Roe.
“The overturning of Roe allows the states to set abortion laws,” Herrod said. “Arizona set this law to say that unborn children are protected in the law.”
She said this is the first of many cases she expects to be filed challenging Arizona abortion restrictions.
The case filed on behalf of two abortion providers who were among many across the state that halted the procedures after Friday's ruling says the personhood law is too vague to be enforced.
The law says hundreds of civil and criminal laws should be interpreted to protect the rights of fertilized eggs, embryos and fetuses at any stage of development. The emergency motion said it provides no guidance on applying it to abortion care or for police and prosecutors.
The ACLU wants a federal judge to block the law's enforcement.
There were just over 13,000 abortions in Arizona in 2020, according to the most recent report from the Arizona Department of Health Services. Of those, fewer than 650 were performed after 15 weeks gestation.
Weeks ago ABC15 tried to get a direct answer from Interim County Attorney Rachel Mitchell about her stance on the personhood statute, and the potential for prosecution. At that point, she said when it came to people seeking abortions she “didn’t think that’s where the law is going."
When asked about providers, she said she would look at each case.
"The legislature has made a statement with the bill that they passed,” said Mitchell. “So, we would look at each case that came in. What I'm not going to do is sit here and say I will just absolutely not follow the law in that regard. That's not my role."
ABC15 reached out again Sunday to the Maricopa County Attorneys Office. While Mitchell couldn’t sit down with us Sunday, ABC15 will be having a more in depth conversation with her Monday.