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Arizona Abortion Providers Revive ‘Personhood’ Provision Fight

June 28, 2022, 1:36 PM

An Arizona law that could subject abortion providers to criminal prosecutions under a variety of state statutes will be the subject of a July 8 hearing in the state’s federal trial court.

Known as the interpretation policy, the provision requires that all Arizona statutes be “interpreted and construed” to “acknowledge” the rights of fertilized eggs, embryos, and fetuses at any stage of development.

The federal constitutional right to end a pregnancy before viability—struck down by the US Supreme Court June 24—was the only thing preventing the policy from being used to criminalize all abortions in Arizona, two doctors who perform abortions said in an emergency motion to block it.

The US District Court for the District of Arizona Monday ordered Attorney General Mark Brnovich (R) to respond to the motion by July 1, gave the doctors until July 6 to reply, and set a telephonic oral argument for July 8.

Judge Douglas L. Rayes previously refused to halt the interpretation policy, also known as a personhood provision, while the case proceeds. The provision isn’t so vague as to prevent people from knowing what conduct will give rise to a violation, he said.

The doctors appealed that decision to the US Court of Appeals for the Ninth Circuit. Oral arguments were scheduled for July 27, but were canceled June 24. The Ninth Circuit ordered the parties to brief three issues in the wake of Dobbs v. Jackson Women’s Health Organization, including what abortion laws will be in effect in Arizona post-Dobbs and whether the providers’ claims are moot.

The providers’ emergency motion argues that stopping the state’s enforcement of the interpretation provision pending appeal is warranted because the providers are likely to succeed in showing that the policy is unconstitutionally vague as applied to abortion. The policy provides no guidance on what it means in the abortion context and doesn’t provide standards to be used by law enforcement to apply the criminal penalty, it said.

There is a significant threat the interpretation policy will be construed to impose criminal, civil, and professional disciplinary liability on the providers while the case proceeds, the motion also said. They thus have had “no choice” but to stop providing abortion care immediately, thereby harming their patients, it said.

The American Civil Liberties Union Foundation of Arizona and the Center for Reproductive Rights represent the providers. The Arizona Attorney General’s Office represents the state.

The case is Isaacson v. Brnovich, D. Ariz., No. 21-1417, hearing order 6/27/22.

To contact the reporter on this story: Mary Anne Pazanowski in Washington at mpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Carmen Castro-Pagán at ccastro-pagan@bloomberglaw.com