Federal Judge Blocks Arizona Law Granting ‘Personhood’ to the Unborn

PHOENIX — U.S. District Court Judge Douglas Rayes on Monday ruled against an Arizona law passed last year granting civil rights to unborn fetuses after abortion rights groups argued in court the restrictions were unconstitutionally vague.

Arizona enacted its “interpretation policy” in April 2021, along with other provisions restricting abortions in cases of fetal genetic abnormalities. These were first challenged in court in August 2021 by the Center for Reproductive Rights, the American Civil Liberties Union and others, on behalf of two Arizona physicians and additional caregivers in the state.

The policy requires prosecutors to apply state laws “on behalf of an unborn child at every stage of development” and defines an “unborn child” as “the offspring of human beings from conception until birth,” according to the order. Rayes granted the plaintiffs’ motion for a preliminary injunction in the case, ruling that the interpretation policy is indeed unconstitutionally vague.

In the ruling, Rayes said medical providers should not have to guess about whether the “otherwise lawful” performance of their jobs could lead to criminal, civil or professional liability. Although the vagueness of Arizona’s personhood law made it unclear what conduct was prohibited under its statutes, most abortion providers in the state chose to stop providing the procedure in order to avoid liability.

The defendants in the case were Arizona Attorney General Mark Brnovich, county attorneys for each of Arizona’s fifteen counties, the Arizona Medical Board and its executive director, and the Arizona Department of Health Services and its director, who argued the policy is not subject to a vagueness challenge because it is not a “substantive law,” but rather a rule of statutory construction.

“Although this motion comes to the court in the context of abortion care, it is not about abortion per se,” Rayes wrote in his ruling. “It is about giving people fair notice of what the law means so that they know in advance how to comply. The interpretation policy is so vague that it ‘makes it impossible for plaintiffs to do their work with fair notice of conduct that is forbidden or required, in violation of their procedural due process rights.’”

The court had previously denied the plaintiffs’ requests to grant a preliminary injunction against the law last year after ruling that the plaintiffs’ challenge was “premature.” The defendants appealed the portion of the order enjoining the fetal genetic abnormality restrictions, which led to the plaintiffs cross-appealing the portion declining to enjoin the interpretation policy.

However, Rayes said that the court’s ruling expresses “no view” on whether a law defining a “person” to include the unborn without exception would be constitutional, as the matter was not before the court for interpretation.

“Yesterday’s ruling was based on an interpretation of Arizona law that our office did not agree with, and we are carefully considering our next steps,” Brittni Thomason, spokesperson for the Arizona attorney general’s office, told The Well News. “Our focus remains on bringing clarity to the law for Arizonans.”

Despite the win for pro-abortion rights advocates, the legality of abortion remains unclear under Arizona law. The state passed a law banning most abortions after 15 weeks in March of this year, which is set to take effect in September.

In June, following the Supreme Court’s decision to overturn Roe v. Wade, Brnovich stated his intention to file a motion to remove an injunction against a more than 120-year-old law banning abortion passed 11 years before Arizona was a state. However, Gov. Doug Ducey disagreed with Brnovich’s assertions and maintained that the abortion law passed this year supersedes the old law.

Arizona’s pre-statehood abortion law makes it illegal for anyone to assist a pregnant woman in obtaining an abortion “unless it is necessary to save her life,” according to its text. The crime is punishable by state prison sentences of two to five years.

Confusion over the legality of abortion in the state has led to clinics in neighboring California and New Mexico to experience an influx of patients from Arizona since Roe’s overturning, according to media reports. The Well News previously reported on a similar phenomenon experienced by abortion clinics outside of Texas weeks after the state passed its own restrictive ban on the procedure after six weeks of pregnancy.

“Finally, a preliminary injunction will not leave Arizona hamstrung,” Rayes said in the order. “If Arizona wants to extend legal protections to the unborn — including, it seems, before medically recognized conception — nothing in this order precludes it from doing so clearly and explicitly, by amending the definition of ‘person’ in those discrete statutes where Arizona wants the change to operate, and by clearly and explicitly stating whether those applications exempt otherwise lawful abortion care.” 

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