Providers can sue over Arizona ban on abortion for genetic anomalies -court

[October 31, 2023]  By Brendan Pierson

(Reuters) -A U.S. appeals court on Monday revived a challenge to an Arizona law banning abortions from being performed solely because the fetus has a genetic abnormality.

A three-judge panel of the 9th U.S. Circuit Court of Appeals unanimously ruled that a group of healthcare providers can sue the state over the law because they are harmed by it, reversing a lower court ruling.

The panel did not address the merits of the challenge, finding only that the providers are entitled to pursue it in court.

Arizona Attorney General Kris Mayes, a Democrat elected in 2022, declined to defend the 2021 law in court and has said she would not enforce it. It is instead being defended by Arizona Senate President Warren Petersen and Arizona House of Representatives Speaker Ben Toma, both Republicans.

The challenged law, signed by Republican then-Governor Doug Doucey, makes it a crime punishable by prison to perform an abortion solely because a fetus is detected to have a genetic abnormality, like Down syndrome or cystic fibrosis, unless the abnormality is fatal. Supporters of such laws describe them as safeguards against eugenics.

"We are glad that the Ninth Circuit has recognized that we deserve to have our day in court," Jessica Slarsky of the Center for Reproductive Rights, a lawyer for the plaintiffs, said in a statement. "We will continue fighting to ensure Arizonans have access to essential abortion care."

"Children diagnosed with Down syndrome and other conditions have the same right to live as everyone else," Erin Hawley of Alliance Defending Freedom (ADF), which represents the Republican lawmakers, said in a statement. "We look forward to continuing to defend this commonsense principle in court. "

Abortion rights protesters march through downtown Tucson in part with nationwide demonstrations following the leaked Supreme Court opinion suggesting the possibility of overturning the Roe v. Wade abortion rights decision, in Tucson, Arizona, U.S., May 14, 2022. REUTERS/Rebecca Noble/File Photo

ADF is a conservative legal group that has led other anti-abortion cases, including an attempt to ban the abortion pill mifepristone.

U.S. District Judge Douglas Rayes blocked the law in September 2021, finding it burdened women's right to abortion guaranteed by the U.S. Supreme Court's landmark 1973 Roe v. Wade ruling. However, the U.S. Supreme Court ordered him to reconsider last year after it overturned Roe.

The providers - including two individual doctors and medical associations - said the law was so vague they did not know when it applied. They said they were "over-complying" by not performing any abortion when there was a genetic condition, because they could not know whether the condition was covered by the law or whether it was the mother's sole reason for wanting an abortion.

Rayes in January rejected that argument, saying the providers had not been harmed by not performing abortions. But the 9th Circuit panel found that the economic loss of not performing abortions that they otherwise would perform was enough to go forward with the lawsuit.

(Reporting By Brendan Pierson in New York; Editing by Alexia Garamfalvi and Jonathan Oatis)

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