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Appeals Court panel hears appeal to reestablish an injunction against Arizona law which forbids aborting children solely because they have Down syndrome

by | Sep 12, 2023

By Dave Andrusko

A three judge panel of the 9th Circuit Court of Appeals heard arguments Monday from lawyers representing two abortionists and three organizations who seek to have SB 1457 blocked. The 2021 law at issue in Isaacson vMayes forbids aborting a child because he or she has a genetic abnormality.

“Republican lawmakers say there’s no need [to block SB 1457] because there’s currently no credible threat of doctors being prosecuted for performing abortions,“ Kirsten Dorman reported.

“The reason, they say, is a June executive order from Democratic Gov. Katie Hobbs that moved the power to prosecute abortions from Arizona’s 15 county attorneys to Attorney General Kris Mayes. Mayes, a Democrat, has made it clear that she won’t prosecute doctors for performing abortions.”

Senate President Warren Petersen and Speaker of the House Ben Toma “intervened as defendants in the law after Arizona Attorney General Kris Mayes said she wouldn’t provide a defense.”

Since 2011, the state of Arizona has prohibited individuals from “perform[ing] an abortion knowing that the abortion is sought based on the sex or race of the child or the race of a parent of that child.” In 2021, Arizona added protections against discriminatory abortions based on non-fatal fetal conditions, such as Down syndrome or cystic fibrosis.

“No child—born or unborn—should be discriminated against because of her race, sex, or disability,” said ADF Senior Counsel Denise Harle, who argued on behalf of the president of the Arizona Senate and the speaker of the Arizona House of Representatives. “Arizona’s life-affirming law ensures that babies, including those with Down syndrome, are not targeted for death because of their genetic makeup. While common sense says that this law deserves everyone’s support, the abortion industry continues to push for and profit from abortions targeting children for their genetics, physical appearance, and other inherent immutable traits. We urge the 9th Circuit to reject plaintiffs’ challenge to this law.”

SB 1457 was signed by former Gov. Doug Ducey, “then blocked by a federal judge in September 2021,” Ray Stern reported for the Arizona Republic. “But the injunction was lifted after the high court’s decision last year [in Dobbs], and Arizona U.S. District Court Judge Douglas Rayes declined to reinstate it, meaning the law is now in effect.”

Getting an injunction “requires the abortion providers to show they face some harm from the law,” according to Stern. Lawyer Jessica Sklarsky told the 9th Circuit judges that the law creates a viable “threat of prosecution” for abortion providers and causes them financial losses. Both of those criteria could trigger an injunction, she said.”

Harle countered, according to Stern, “that it would be premature to order an injunction blocking the law because there was no threat of enforcement. As an example of the lack of a threat, Harle noted that Mayes has vowed not to prosecute any law that restricts abortions.”

Justices Andrew Hurwitz and Roopali Desai, “who were in the courtroom, seemed skeptical of Harle’s position, interrupting her repeatedly as Judge Ronald Gould listened in via video call.”

Categories: State Legislation