Arizona Abortion ‘Reason’ Ban Lawsuit Revived by Ninth Circuit

Arizona abortion providers can continue their fight against a law that prohibits abortions sought solely because an embryo or fetus tested positive for a genetic abnormality, a federal appeals court said Monday.

The providers showed that the law subjects them to the type of immediate, concrete threat of harm required to assert standing for a pre-enforcement vagueness challenge under the 14th Amendment’s due process clause, the US Court of Appeals for the Ninth Circuit said.

Arizona Attorney General Kris Mayes (D) has said state authorities won’t enforce the law, but there are still 15 county prosecutors who could bring criminal charges against providers who allegedly violate the reason ban—and at least one who’s threatened to do so, Judge Ronald M. Gould said. That’s enough to support the court’s jurisdiction, the opinion said.

There’s also a threat of private enforcement, because the law gives private parties a right to sue doctors civilly for alleged violations, the court said.

“The combination of these potential threats—from the county attorneys, the Arizona health agencies, and private parties,” the court said, “is sufficient to allege an imminent future injury.”

The law at issue defines a genetic abnormality as the “presence or presumed presence of an abnormal gene expression in an unborn child, including a chromosomal disorder or morphological malformation occurring as the result of abnormal gene expression.”

It doesn’t, however, say what conditions constitute a genetic abnormality, what role an abnormality must play in a patient’s decision to have an abortion, or what level of knowledge a physician must have about the patient’s reasons, the providers alleged.

A federal trial judge dismissed the case for lack of standing, relying on an Eleventh Circuit decision that says plaintiffs must show that they intended to engage in conduct “arguably affected with a constitutional interest” in order to have standing.

This factor is satisfied only when a law’s alleged vagueness chills the exercise of a separate constitutional right, and there is no such right to abortion after Dobbs v. Jackson Women’s Health Organization, the judge said.

The lower court’s reasoning didn’t apply to determine the standing argument, the Ninth Circuit said in reversing. A “chilling effect” is a cognizable injury only in an overbreadth facial challenge under the First Amendment, it said. The proper test in a pre-enforcement due process vagueness challenge is whether the plaintiffs had a stake in the outcome and if they faced a credible threat of prosecution, it said. The plaintiffs passed that test here, the Ninth Circuit said.

Abortion is legal in Arizona up until 15 weeks, with several restrictions.

Judges Andrew D. Hurwitz and Roopali H. Desai joined the opinion.

Alliance Defending Freedom represents Arizona lawmakers, who intervened to defend the law after Mayes’ administration declined to do so. The Center for Reproductive Rights, Wilkinson Stekloff LLP, the American Civil Liberties Union Foundation, and the ACLU of Arizona represent the plaintiffs.

The case is Isaacson v. Mayes, 9th Cir., No. 23-15234, 10/30/23.