GOP state leaders win permission to defend abortion law in court

Republican legislative leaders have been given the go-ahead by a federal judge to defend a 2021 abortion law in court after the attorney general said she wouldn’t. 

In early February, Senate President Warren Petersen and House Speaker Ben Toma filed a request to intervene in an ongoing challenge against the law, arguing that newly elected Democratic Attorney General Kris Mayes would not sufficiently represent their interests. Mayes campaigned on protecting abortion access and has refused to take on the anti-abortion legal stances she inherited from her predecessor, Republican Mark Brnovich.

“The President and Speaker have a unique interest in defending the constitutionality of laws duly enacted by the Arizona Legislature,” attorneys for Petersen and Toma wrote in the motion. “Because Attorney General Mayes will not defend the constitutionality of the challenged laws, the existing parties do not adequately represent the Legislative Leaders’ interests.” 

The law, which has faced repeated challenges from pro-abortion organizations since its passage, is made up of several parts, including a ban on elective abortions carried out because of a genetic abnormality and a provision that ascribes all the rights and protections of a U.S. citizen to the unborn fetus. Advocates warned that the latter effectively outlawed all abortions, by threatening doctors with child endangerment charges even in procedures performed to save the mother’s life, which is the only exception afforded by the genetic abnormality ban. 

The ban, meanwhile, punished doctors who violate it with a class 6 felony, and nurses, other medical personnel and even mental health counselors faced a $10,000 fine if they failed to report a violation to law enforcement.

The genetic abnormality ban was originally blocked, but a federal judge removed the injunction after the constitutional right to abortion was struck down by the U.S. Supreme Court in Dobbs v. Jackson Women’s Health Organization, saying that the high court’s decision had changed the legal landscape. A ruling holding the fetal personhood provision in the bill at bay is set to expire in July, and the permission to intervene means that the lawsuits can move ahead with a defending party, where before none existed. 

“If (Petersen and Toma) are not permitted to intervene, the challenged laws will go undefended, which ‘risks turning a deaf ear to the voices the State has deemed crucial to understanding the full range of its interests,’” Judge Douglas Rayes wrote, citing previous court cases. 

The pro-abortion groups that challenged the 2021 law opposed the involvement of the lawmakers, pointing to a provision in the law that states the legislature may appoint one or more of its members to intervene only if a concurrent resolution has been passed and the chosen candidates helped sponsor the bill. Petersen was a cosponsor of the measure, but Toma was not, although he did vote to support it, and neither of them was selected by the legislature as its representatives. 

Alliance Defending Freedom, an anti-abortion law firm that represented the legislative leaders and has promised to foot the bill, rebutted that more recent statutes allow the speaker and president to volunteer, even if they were not involved in creating the challenged laws. And newly revised Senate and House rules further empower both leaders to act on behalf of their legislative bodies. Rayes agreed, saying that although Petersen and Toma don’t meet the requirements for intervention outlined in the original bill, the newer laws and rules expanded their ability to do so. 

Toma and ADF celebrated the decision, calling it a step towards protecting the unborn and outlawing discriminatory practices. 

“When it became clear that Attorney General Mayes would not defend Arizona’s law prohibiting discriminatory abortions, the Legislature had to step in,” said Toma. “I applaud the federal court’s order recognizing our legislative authority and granting our motion to intervene to defend the constitutionality of this law.” 

“Among other things, this law ensures that babies, including those with Down Syndrome, are not targeted for death because of their genetic makeup,” added ADF Senior Counsel Denise Harle in a statement on the law firm’s website. “We’re pleased the court has allowed Speaker Toma and President Petersen to defend this life-saving law.”

A spokesperson for Mayes, whose position as the state’s defense Toma and Petersen have taken up, said in an emailed statement to the Arizona Mirror that she doesn’t oppose their intervention. 

“She believes the Speaker and the President (have) a right to make their views known,” said spokesman Richie Taylor.

But for Civia Tamarkin, president of the National Council of Jewish Women Arizona, which brought the lawsuit, along with other pro-abortion groups including the Arizona Medical Association and National Organization for Women, the involvement of Petersen and Toma is simply an extension of a yearslong assault on women from the GOP. 

“State lawmakers have been relentless in their efforts to deny Arizonans the ability to make their own decisions about their health and their lives,” she said. “For years, they have enacted abortion restriction after abortion restriction. And now they’ve been permitted to defend these unjust laws at the district court.” 

She added that the National Council of Jewish Women Arizona won’t be dissuaded, however, and will remain a staunch pro-abortion advocate in the courtroom. The group, along with the other pro-abortion organizations, has already appealed Rayes’ decision to remove the injunction from the genetic abnormality ban to the Ninth Circuit Court of Appeals. 

For now, women in Arizona can access abortion procedures until the 15-week mark, after a December court ruling upheld a 2022 law over a near-total abortion ban from 1864. That decision is also seeing a renewed challenge, however, as Alliance Defending Freedom appealed the ruling earlier this month on behalf of an anti-abortion doctor.