An Arizona law that could subject abortion providers to criminal prosecutions under a variety of state statutes has been blocked for the duration of a lawsuit because it’s likely unconstitutionally vague, a federal court in the state said.
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. But the policy, also referred to as a “personhood” provision, offers no guidance on what it means to acknowledge the rights of the unborn, the US District Court for the District of Arizona said.
The policy isn’t compatible with Arizona laws that allow and regulate abortion, Judge Douglas L. Rayes said in Monday’s order granting a preliminary injunction prohibiting the state from enforcing the policy against providers of legal abortions for the duration of the litigation. The uncertainties about the law’s scope “create an intolerable risk of arbitrary enforcement,” he said.
Abortion providers challenged the provision in 2021. Rayes declined to block it at that time, but the situation has changed, as 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 filing June 25.
Rayes agreed that the time was ripe to reconsider the policy in the context of its effect on abortion care.
The US Constitution’s 14th Amendment precludes states from enforcing laws that are so vague that they fail to give ordinary people fair notice of the actions they prohibit, the court said. Such laws invite arbitrary enforcement by essentially leaving it up to police officers, prosecutors, and judges to define crimes, it said.
The interpretation policy potentially exposes abortion providers and others to criminal, civil, and licensing actions without defining key terms, the court said. It “either does absolutely nothing, or it does something,” Rayes said. “What that something might be is a mystery or, as Defendants put it, ‘anyone’s guess,’” he said.
The extent to which Arizona now forbids abortion is unclear, the court said. But even under the strictest regime, abortion likely will remain legal in some contexts, it said. Nevertheless, the policy could be interpreted to make otherwise legal conduct illegal without giving providers fair notice, Rayes 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-cv-1417, 7/11/22.
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