Abortion providers urge judge to block Arizona 'personhood' law

Abortion rights activists protest outside the Arizona state Senate following the U.S. Supreme Court's decision to overturn Roe v. Wade, in Phoenix, Arizona, U.S. June 24, 2022. Joel Angel Juarez/USA TODAY NETWORK via REUTERS
  • State says personhood law does not criminalize abortion
  • Providers say law is unconstitutionally vague

(Reuters) - Arizona abortion providers on Friday urged a federal judge to block a state law recognizing the personhood of a fetus from the moment of fertilization, saying it was vague and opened them up to prosecution.

Jessica Sklarsky of the Center for Reproductive Rights, who argued for the providers at a hearing before U.S. District Judge Douglas Rayes in Phoenix, also said the provision could conflict with a law allowing abortion up to the 15th week of pregnancy set to take effect in September.

Kate Sawyer, of the Arizona attorney general's office, countered that the provision, which states that Arizona law must be interpreted to grant fertilized eggs, embryos and fetuses the same "rights, privileges and immunities available to other persons," was not intended to create any new crime related to abortion.

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Rayes did not rule at the hearing, though he questioned both sides extensively, in particular pressing Sawyer to explain what exactly the personhood law does.

The case is one of many disputes over state abortion laws in the wake of the U.S. Supreme Court's ruling in Dobbs v. Jackson Women's Health Organization, which overturned the court's longstanding precedents in Roe v. Wade and Casey v. Planned Parenthood guaranteeing abortion rights nationwide.

Arizona passed the personhood law in April 2021. Abortion providers sued to block it last August, arguing that it was unconstitutionally vague because it did not make clear what conduct, if any, it would prohibit.

Following the Dobbs ruling, the providers filed an emergency motion to enjoin the personhood law, saying it could subject providers to prosecution for aggravated assault, child endangerment or other crimes - though they noted that the state's homicide statute carves out abortion.

The state countered in a filing that the provision's effect would have to be interpreted case by case by courts, making its exact effect "anyone's guess."

Rayes expressed concern about that position at Friday's hearing.

"How, in defendants' view, are plaintiffs supposed to comply with the law if it is anyone's guess what the law in Arizona is?" he asked Sawyer.

Sawyer said the law could not be challenged for vagueness because it merely creates a policy for interpreting other laws.

Sklarsky said her clients could not rely on the state's promise in court that the personhood law did not criminalize abortions.

Without an injunction, she said, the law would be "putting pregnant people in the state in immense danger."

Arizona in March passed a law banning most abortions after 15 weeks, set to take effect in September. Attorney General Mark Brnovich has also said he will seek to enforce a law from 1901, before Arizona was a state, banning virtually all abortions.

The case is Isaacson et al v. Brnovich et al, U.S. District Court, District of Arizona, No. 2:21-cv-01417.

For plaintiffs: Jessica Sklarsky of the Center for Reproductive Rights

For Arizona: Kate Sawyer of the Attorney General's office

Read more:

Arizona governor signs 15-week abortion ban into law

Judge temporarily blocks key aspect of new Arizona abortion law

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Brendan Pierson reports on product liability litigation and on all areas of health care law. He can be reached at brendan.pierson@thomsonreuters.com.