‘Personhood’ abortion law cannot lead to charges, says Arizona

An attorney with the Arizona attorney general’s office on Friday told a judge that a 2021 state “personhood” law that gives all legal rights to unborn children can’t be used to bring criminal charges against abortion providers.

The comment from Assistant Solicitor General Kate Sawyer came during a hearing where attorneys from the American Civil Liberties Union of Arizona and an abortion rights group representing abortion providers were seeking an injunction blocking the law.

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They said abortion providers are worried that prosecutors will bring charges for crimes like assault and child abuse under the law, which US District Judge Douglas Rayes declined to block last year.

That decision came before the US Supreme Court’s June 24 ruling overturning Roe v. Wade, the 1973 case that said women have a right to seek an abortion.

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The battle over Arizona’s “personhood” law — one of several in Republican-led states that aim to grant all rights to pre-born children — is playing out despite all abortions being halted in the state. Arizona providers stopped providing the procedure because of concerns that a pre-1901 law that bans all abortions may now be enforceable, as Republican Attorney General Mark Brnovich declared on June 29.

That law has been blocked since 1973, but Brnovich has vowed to go to court to remove that injunction.

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Attorney Jessica Leah Sklarsky of the Centre for Reproductive Rights urged Rayes to block the personhood law, arguing it is unconstitutionally vague on several fronts. One is because it says unborn children should be “acknowledged” to have all rights, and another is because it is unclear how it can be reconciled with criminal laws.

“Both of these flaws independently create all of the problems that the vagueness doctrine is intended to prevent,” Sklarsky told Rayes.

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She also noted that the attorney general said in their legal papers that it’s “anyone’s guess” how state judges might apply the law.

Arizona is in that position, with Republican Gov. Doug Ducey saying a ban on abortions after 15 weeks that he signed in March takes precedence over the pre-1901 law Brnovich said in in effect.

There were just over 13,000 abortions in Arizona in 2020, according to the most recent report from the Arizona Department of Health Services. Of those, fewer than 650 were performed after 15 weeks of gestation.