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Arizona Judge Blocks Law That Treats Fetuses as People

The law granted embryos and fetuses the same rights as a person. Civil rights groups sought an injunction out of concern the law could criminalize people who provide or obtain abortions.

Police and protesters outside of the Supreme Court after Roe was overturned.
Police and protesters outside the Supreme CourtFlickr via Victoria Pickering

A federal district court judge in Arizona has placed an injunction on a 2021 law that grants fetuses at any stage of development the same rights as citizens of Arizona. The injunction prevents the law from being used to bring criminal charges against people who provide or obtain abortions.

In an order released Monday evening, Judge Douglas Rayes agreed that the personhood law was unconstitutionally vague, noting that the law “does absolutely nothing, or it does something. What that something might be is a mystery or, as Defendants put it, ‘anyone’s guess.’ And that is the problem.”

Even with the injunction, the legality of abortion remains unclear in Arizona, where the Republican governor and state attorney general have given conflicting statements about which anti-abortion laws are in effect. The governor has stated that a 15-week ban passed earlier this year supersedes other anti-abortion laws, while the attorney general maintains that a century-old ban on providing abortions except to save a parent’s life—from before Arizona became a state—is the law of the land.

Supporters of abortion rights say Arizona’s forced-birth proponents are creating chaos on purpose. Confusion over what is legal has led most abortion providers in the state to stop providing abortions out of fear they could be charged with crimes and/or lose their licenses.

On June 25, the American Civil Liberties Union of Arizona and the Center for Reproductive Rights filed an emergency motion for an injunction on the so-called personhood law one day after the Supreme Court overturned Roe v. Wade, stating they were concerned the law could be used to criminalize people who provide or obtain abortions.

The civil rights groups argued that the personhood statute was unconstitutionally vague. As written, the law grants “all rights, privileges, and immunities” available to Arizona residents to “an unborn child at every stage of development” without providing any further guidance on what that actually means.

“These uncertainties create an intolerable risk of arbitrary enforcement,” Rayes wrote in the order he issued on Monday. “Medical providers should not have to guess about whether the otherwise lawful performance of their jobs could lead to criminal, civil, or professional liability solely based on how literally or maximalist state licensing, law enforcement, and judicial officials might construe the [law].”

If embryos and fetuses have the same rights as a person, the plaintiffs noted, someone who ends a pregnancy could potentially be charged with crimes like aggravated assault, reckless endangerment, child endangerment, or child abuse. Such charges have already been filed against women in other states who have had stillbirths, miscarriages, and abortions.

Last year, a 19-year-old in Oklahoma who miscarried at 17 weeks was convicted of manslaughter and sentenced to four years in prison. The woman, Brittney Poolaw, told hospital staff that she had recently used methamphetamine and marijuana—but a medical examiner stated that the fetus’s congenital abnormalities and the fact that the placenta had detached from the uterus had also contributed to the miscarriage.

“Beyond restricting access to abortion, personhood laws have broad potential for criminalizing pregnant people and allowing state surveillance and regulation of their conduct,” Civia Tamarkin, president of the National Council of Jewish Women Arizona, said in a press release.

Confusion over Arizona’s many anti-abortion laws has already hurt patients seeking care. Clinics in California and New Mexico have seen an influx of patients from Arizona. Sexual assault victims and a seriously ill 15-year-old have sought abortions in Arizona in the weeks since Roe was overturned, but will likely need to seek care elsewhere. Young people in Arizona have already begun self-managing abortions. And a 21-year-old woman who is 26 weeks pregnant told NBC News that she was told her pregnancy is not viable—but she cannot get care to help end the pregnancy in Arizona. The woman is now left choosing between spending tens of thousands of dollars to end her pregnancy in another state, or remaining pregnant with her nonviable fetus until she miscarries or gives birth.

The pre-statehood abortion ban makes it a felony to “provide, supply, or administer” an abortion except to save the life of the pregnant person. The law includes a mandatory two to five years in prison for people who provide abortions. The statute is not currently in effect due to an injunction from a 1973 Arizona Court of Appeals ruling—which blocked the pre-statehood ban due to the U.S. Supreme Court’s Roe v. Wade ruling. The state attorney general could file to lift that injunction at any time, but he has yet to do so.

Confusingly, Arizona Attorney General Mark Brnovich on June 29 said both that the pre-statehood ban is “back in effect” and something his office will seek to lift the injunction on. Brnovich’s office did not immediately respond when asked how the law could be both “back in effect” and enjoined.

Brnovich’s office has claimed the injunction on the pre-statehood ban only applies to Pima County, but the injunction was handed down by the Arizona Court of Appeals and applies statewide. The 1973 Court of Appeals decision states, “The decision of the trial court is affirmed except that part of the decision limiting the effect of the decision to the parties only is modified in that the statutes in question are unconstitutional as to all.”

In other words, the decision of the “trial court”—the 1972 decision by the Pima County Superior Court which ruled that Arizona’s abortion statutes were unconstitutional—was upheld by the Court of Appeals. Except, as the 1973 Court of Appeals decision explicitly states, the 1972 decision “is modified” so that the pre-statehood ban statutes are “unconstitutional to all.”

Meanwhile, Maricopa County Attorney Rachel Mitchell— the district attorney for one of the largest prosecuting agencies in the country—has also incorrectly said the injunction doesn’t apply to her. Mitchell, whose jurisdiction includes Phoenix and 4.5 million of Arizona’s 7 million residents, told ABC15 that the injunction “specifically pertains to the attorney general’s office and the Pima County attorney’s office. It doesn’t pertain to every county attorney.”

Mitchell did not respond when asked why she thinks the injunction on the pre-statehood ban doesn’t apply to her.

The state’s 15-week ban makes it a felony to perform an abortion after 15 weeks unless it is to save the life of a pregnant person. People who perform abortions after 15 weeks can have their medical licenses suspended or revoked under this law. That ban does not take effect until September 23.

Neither the pre-statehood ban nor the 15-week ban makes exceptions for pregnancies caused by rape or incest. Both bans criminalize providers, not pregnant people.

“We’re glad the court stopped [the personhood] law from being used to force Arizonans to carry a pregnancy against their will and face the life-altering consequences of being denied essential health care,” Alexa Kolbi-Molinas, deputy director of the ACLU Reproductive Freedom Project, said in a press release. “But our work to block the state from trying to control women and pregnant people’s bodies and futures is far from over.”

“We’ll continue using every tool at our disposal to fight for a future where everyone can decide if and when to have a child, regardless of where they live.”