Attorneys for the abortion industry are again attempting to overturn a law protecting preborn children with disabilities from abortion.
According to Bloomberg News, on Monday, The Ninth Circuit Court of Appeals seemed open to reviving a lawsuit that had previously challenged Arizona Senate Bill 1457, which prohibits abortions from being carried out on children solely because they test positive for a genetic condition such as Down syndrome.
The original lawsuit was filed immediately after the law was signed in 2021 by The Center for Reproductive Rights and the American Civil Liberties Union on behalf of the National Council of Jewish Women (Arizona Section), the Arizona National Organization for Women, and the Arizona Medical Association. The law both protects children with Down syndrome or any other genetic condition from being killed by abortion and expands upon existing laws protecting preborn children from abortion due to race or gender. The law also gives an “unborn child at every stage of development, all rights, privileges and immunities available to other persons, citizens and residents of this state.”
There are exceptions allowed for medical emergencies, though an induced abortion — the intentional and direct killing of a preborn child — is not medically necessary.
The law was partially blocked by U.S. District Judge Douglas Rayes in 2021. But in January of 2023, following the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization overturning Roe v. Wade, Rayes reversed his decision to block the law, allowing it to take effect. He ruled that the pro-abortion groups’ arguments no longer had standing.
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The same organizations behind the original lawsuit have asked the U.S. Court of Appeals for the Ninth Circuit to revive the suit and a panel for the court heard arguments on Monday. Lawyer Jessica Sklarsky, who is representing the pro-abortion plaintiffs, claimed that the law creates a “threat of prosecution” and could cause financial losses for the abortionists.
Yet as Denise Harle, senior counsel for Alliance Defending Freedom (ADF), said, Arizona Attorney General Kris Mayes has already stated she will not enforce the law following Gov. Katie Hobbs’ executive order stripping the 15 county prosecutors of the ability to enforce abortion laws — meaning there is no threat of prosecution. “We have no government official that has even hinted at suggesting that they’d enforce this law against anyone, let alone the plaintiffs,” she said.
Justices Andrew Hurwitz and Roopali Desai, according to AZ Central, were skeptical, however, stating that Mayes didn’t issue a disclaimer in this case specifically detailing her intent to not enforce the law. For her part, Sklarsky said Harle “grossly” understated the “unbelievable risk” the law poses to abortionists, who could lose their medical license, as well as their “entire livelihood.” Sklarsky seemed unconcerned about the preborn children who could lose their entire lives if the law is overturned, solely because they have Down syndrome or another disability.
“I am confident in our legal arguments and thankful to the Alliance Defending Freedom for their advocacy in this important case,” Ben Toma, the Arizona Speaker of the House and one of the defendants, said. “I hope the court will decide quickly in our favor, but I am prepared to the go to the Supreme Court if necessary.”
