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Arizona AG asks Supreme Court to allow abortion ban for genetic anomalies to take effect

by | Dec 15, 2021

By Dave Andrusko

On Tuesday Arizona Attorney General Mark Brnovich asked the Supreme Court for an emergency order reinstating a law banning abortions performed solely because of Down syndrome as well as other genetic abnormalities to go into effect.

“Brnovich argued in court papers that the law furthers Arizona’s interest in protecting the disability community from discrimination,” the Associated Press reported. He added in his brief

“This court has never otherwise recognized the purported right at issue — a right to race-, sex-, or genetic-selective abortions. The right to perform an abortion based solely on the results of genetic testing is novel, with no basis in the Constitution’s text or the nation’s history and traditions.”

The act sends, the legislation says, “an unambiguous message that children with genetic abnormalities, whether born or unborn, are equal in dignity and value to their peers without genetic abnormalities, born or unborn.”

In September Federal Judge Douglas Rayes denied Brnovich’s request to stay his injunction pending appeal of the judge’s decision to put SB 1457 on hold. Judge Rayes summarily rejected Brnovich’s request to allow the law to go into effect while the case is before the 9th Circuit as an “emergency.”

Last month, U.S. Court of Appeals for the 9th Circuit “left the district court’s order in place pending appeal, prompting the state to come to the Supreme Court on Tuesday afternoon and ask the justices to reinstate the law while the state’s appeals proceed,” according to Amy Howe. “Brnovich added that the courts of appeals are divided on the constitutionality of laws like Arizona’s – a factor that the justices often consider in deciding whether to grant review.”

Rayes, an appointee of former President Obama, originally rejected the law, signed by Gov. Doug Ducey in April, just eight hours before it was to go into effect. 

When the issue last came to the Supreme Court, in 2019, “the justices rejected Indiana’s appeal over enforcing its law, which also prohibited abortion because of the race or sex of the fetus,” The AP reported. “Justice Clarence Thomas wrote a lengthy opinion in which he said the Indiana law ‘and other laws like it promote a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics.”

The case goes first to Justice Elena Kagan, who handles emergency requests from Arizona.

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