On Monday, the Ninth Circuit Court of Appeals heard oral arguments in a lawsuit arguing against the state’s ban on abortions solely for genetic defects.
In the case, Isaacson v. Mayes, pro-abortion doctors and groups appealed the district court’s denial of a preliminary injunction against Arizona’s ban on abortions based on genetic defects.
The legislature passed the ban, SB 1457, back in 2021.
The plaintiffs in the lawsuit against the ban are abortionists Paul Isaacson and Eric Reuss, along with the National Council of Jewish Women, Arizona National Organization For Women, and Arizona Medical Association.
Isaacson was a Phoenix-based abortionist with Family Planning Associates. Reuss was a Scottsdale-based OBGYN and former board member for Planned Parenthood of Arizona.
Judges Roopali Desai, Ronald Gould, and Andrew Hurwitz heard the oral arguments. While Desai and Hurwitz were engaged in the arguments with their questions, Gould hardly spoke except to request an adjustment of the livestream audio.
In March, House Speaker Ben Toma (R-LD27) and Senate President Warren Petersen (R-LD14) stepped up to defend the ban after Attorney General Kris Mayes said she would refuse to enforce the law. Mayes is acting as the defense in the lawsuit currently.
During Monday’s oral arguments, the main question at hand was whether the plaintiffs had Article III standing. Article III of the Constitution, as held by the Supreme Court, requires plaintiffs to prove an actual or imminent alleged injury that is concrete and particularized.
Jessica Sklarsky with the Center for Reproductive Rights argued on behalf of the plaintiffs that they suffer undisputed economic harms and threat of prosecution due to the abortion ban. The district court determined that the plaintiffs failed to meet the standard set by the 2014 Supreme Court case Susan B. Anthony List v. Driehaus, which determined that pre-enforcement challenges satisfy the Article III standard and are justiciable when a statute’s enforcement is sufficiently imminent.
Sklarksy also argued that the abortion ban qualified as a vague law, and therefore violated due process rights.
“Vague laws force those they govern to either avoid doing anything that is arguably covered by the law, or to engage in that conduct with the constant threat of arbitrary enforcement,” said Sklarsky.
Denise Harle with Alliance Defending Freedom (ADF), counsel on behalf of Toma and Petersen, countered that no Article III injury exists due to the lack of a credible threat of enforcement.
Harle pointed out that all 15 county attorneys have acceded their authority to Mayes, and that Mayes has disavowed enforcement of abortion law. Harle also pointed out Gov. Katie Hobbs’ executive order in June usurping all county attorneys’ authority on abortion law and conferring it to Mayes.
Hurwitz and Desai pushed back against Harle’s reference to Mayes and Hobbs’ conduct, arguing that Mayes didn’t issue a disclaimer in this case specifically detailing her intent to not enforce the law.
Hurwitz indicated that Toma and Petersen’s support of the law, as well as the private enforcement aspect of the law, indicated a credible threat of enforcement.
“Does the law really require that a credible threat be communicated? If the state of Arizona passes a statute and the two leaders of the legislature are here defending its constitutionality, isn’t that enough to show there is a credible not a certain but a credible threat of enforcement?” asked Hurwitz.
Harle disagreed, saying the potential for private enforcement constituted a hypothetical. She alluded to the arrangement by Hobbs and Mayes to not enforce abortion law.
“[T]he theoretical possibility of an injury sometime in the future is too conjectural when it’s not imminent,” said Harle.
Desai followed up by stating that the court’s decision in Tingley v. Fergusoncould apply to this case. In that case, a family counselor challenged the state of Washington’s ban on conversion therapy as a violation of free speech and religious practice. Harle responded that the existence of a law alone wasn’t sufficient for direct injury.
“Virtually anyone could look at a law, say ‘I’m not sure what that means, I’m going to do something or not do something’ [and] that would be enough for a federal court to weigh in and adjudicate the merits of that claim on a facial challenge,” said Harle.
Watch the full hearing here:
Corinne Murdock is a reporter for AZ Free News. Follow her latest on Twitter, or email tips to corinne@azfreenews.com.
Attorney General Kris Mayes is fighting the state of Idaho’s ban on minors traveling to other states to obtain an abortion.
Mayes joined a coalition of 20 Democratic attorneys general to challenge the ban in federal court.
Those in the challenge, led by the state of Washington, are California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Mexico, New Jersey, New York, North Carolina, Oregon, Rhode Island and Washington, D.C.
In a Tuesday press release, Mayes cast those opposed to abortions for minors as “anti-choice extremists.”
“States are free to regulate abortion within their border, but Idaho’s restrictive law goes too far,” stated Mayes. “When a state like Idaho prevents it[s] residents from getting reproductive healthcare in their home state, those patients are entitled to seek out care in a state that lets patients make medical decisions without imposition of the government.”
I will continue to take legal positions that will protect the health, safety, and privacy of all Arizonans. States are free to regulate abortion within their border, but Idaho’s restrictive law goes too far.
— AZ Attorney General Kris Mayes (@AZAGMayes) August 2, 2023
Idaho law prohibits the recruitment, harboring, and transportation of mothers seeking abortions. In the amicus brief, the attorneys general argued that the law violated the rights of interstate travel and free speech, as well as infringed on the legality of abortion in surrounding states.
The attorneys general further argued that Idaho law posed an inappropriate, and even dangerous, deterrent to abortionists and pro-abortion organizations. They claimed that abortion was safe at virtually any stage of the pregnancy, but that delays could pose an increased risk to the mother.
Parental competence was also addressed by the attorneys general. The Democratic leaders argued that up to one-third of pregnant minors had unreliable, confrontational, or dangerous parents, citing research from the American Academy of Pediatrics.
Expanding abortion access has been a defining aspect of the Mayes administration so far. In March, Mayes formed a six-member Reproductive Rights Unit within her office: the first of its kind. Heading the unit is deputy solicitor general Hayleigh Crawford.
Mayes’ abortion rights unit bears resemblance to the Justice Department’s Reproductive Rights Task Force. Both have sought to fight against various states’ attempts to restrict or ban abortion and have fought legal challenges against the prohibition of the abortion-inducing drug mifepristone.
Last month, Mayes petitioned for the Biden administration to prevent the health information of women who received an abortion from being accessed for the purpose of any criminal, civil, or administrative investigations related to abortion restrictions or bans.
Mayes is also fighting to prevent the enactment of the state’s original law on abortion — a near-total ban — over the more recent law, a 15-week restriction.
Corinne Murdock is a reporter for AZ Free News. Follow her latest on Twitter, or email tips to corinne@azfreenews.com.
Governor Katie Hobbs has rejected a request made by 12 of Arizona’s 15 county attorneys to rescind her executive order taking away their authority to enforce abortion law. The county attorneys submitted a letter to the governor on Monday. The county attorneys issued a Friday deadline for her response.
The governor issued an executive order last month stripping county attorneys of their ability to enforce abortion law. Hobbs bestowed that responsibility onto Attorney General Kris Mayes, who has already said she plans on ignoring the law.
Abortion is banned after 15 weeks’ gestation in Arizona.
The letter pointed out that Hobbs’ action undermined the duty and discretion of the county attorneys to enforce the law.
“The governor’s office should not interfere with the discretion of prosecutors in fulfilling their duties as elected officials,” stated the letter. “Whether this was the intended purpose, the result [of the executive order] is an unnecessary and unjustified impingement on the duties and obligations of elected county attorneys in Arizona.”
The county attorneys also contested that Hobbs had usurped authority that didn’t belong to her.
“This executive order results in an exercise of authority not vested in the governor’s office,” read the letter. “It is a substantial overreach to suggest the governor may strip away prosecutorial discretion from local, elected officials.”
— Maricopa County Attorney's Office (@marcoattorney) July 4, 2023
Hobbs’ new communications director, Christian Slater, tweeted in response that Hobbs’ assuming control over the judiciary in an effort to undermine the current law was part of her putting “sanity over chaos.” Slater labeled those opposed to abortion as “extremists.”
“Governor Hobbs will continue to use her lawful executive authority to put sanity over chaos and protect everyday Arizonans from extremists who are threatening to prosecute women and doctors over reproductive healthcare,” wrote Slater.
We will not rescind this order. Governor Hobbs will continue to use her lawful executive authority to put sanity over chaos and protect everyday Arizonans from extremists who are threatening to prosecute women and doctors over reproductive healthcare. https://t.co/9uw1xxVtnC
Hobbs issued the executive order one day before the one-year anniversary of Dobbs v. Jackson Women’s Health Organization — the Supreme Court (SCOTUS) decision that overturned Roe v. Wade. Hobbs’ order revoked the authority of county attorneys to prosecute abortion-related cases, and passed that authority onto Mayes.
Hobbs called abortion a “fundamental right,” the existence of which she claimed was paramount to freedom.
“I signed an Executive Order protecting Arizonans’ reproductive freedom,” said Hobbs. “I will not allow extreme and out of touch politicians to get in the way of the fundamental rights of Arizonans.”
Corinne Murdock is a reporter for AZ Free News. Follow her latest on Twitter, or email tips to corinne@azfreenews.com.
One of Arizona’s leading Republicans is seeking a meeting with the state’s chief executive over her recent actions over abortion.
Senate President Warren Petersen sent a letter to Democrat Governor Katie Hobbs, hoping to broker a meeting and a solution to the standoff the state finds itself in over consideration of her remaining nominations.
Petersen wrote, “I’m troubled by your recent administrative actions. My constituents and Senate colleagues are concerned by the slew of Executive Orders you have recently issued while we are in recess. These questionable actions and the role of your agency Directors, many of whom the Senate has yet to confirm, is worth discussion.”
The Senate President continued with his letter, requesting a meeting with the governor, stating, “While I believe it would have been productive for you to meet with my colleagues on the nominations committee who requested a meeting, I think a conversation between the two of us would be productive. Let’s see if we can find a way to move forward in a bipartisan manner that benefits all of Arizona.”
This plea from the east valley lawmaker follows a volley of reactions from both Republicans and Democrats after the governor’s Executive Order to “centralize all abortion-related prosecutions under the Attorney General to ensure differences in applications of the law by county attorneys do not restrict access to legal abortions.” Senator Jake Hoffman, the Chairman of the Committee on Director Nominations, announced that he was canceling the next hearing “with support of the Republican Majority serving on the committee to determine Hobbs’ future intentions to further act beyond her authority.”
The three Republican members of the committee – Hoffman, Sine Kerr, and T.J. Shope – requested a meeting with the Hobbs’ administration “to discuss any additional unlawful overreach (her) office intends to take requiring complicity from Executive Directors,” telling the governor that they have “grave concern that the direction (she) intends to provide to (her) nominees will not allow them to fulfill this obligation (of thoroughly and objectively evaluating nominees for their commitment to execute Arizona laws, rather than create new public policies that conflict with the constitutionally established separation of powers).”
Arizona Senate Democrats quickly pushed back on Hoffman’s revelation. Senate Democratic Caucus Chair Lela Alston issued a statement, writing, “Senator Jake Hoffman has once again shown his disregard for government and everyday Arizonans. By failing to schedule the confirmation hearings for the Governor’s nominees, he shows how ineffective and partisan the Republican party in Arizona truly is. I am disgusted by this move of extremism and call on his leadership to rectify his foolish actions.”
— Arizona Senate Democrats (@AZSenateDems) June 26, 2023
After a report circulated that this meeting was “not likely” to occur, Senator T.J. Shope tweeted, “Oh…so much for that Open Door Policy we’ve heard about over and over again. I guess Governor Hobbs would rather fight it out in an adversarial court setting as opposed to an adult conversation in an office setting.”
A Senate Republican Caucus spokesperson previously told AZ Free News that the chamber has received 21 director nominations from Hobbs, with 12 awaiting their confirmation hearings.
Just a day before the Senate President’s Letter to Governor Hobbs, his caucus tweeted, “Hobbs is setting a dangerous precedent by issuing illegal executive orders and attempting to seize power from county attorneys and the Legislature. Our Caucus is reviewing all legal remedies to ensure appropriate constitutional separation of powers.”
Hobbs is setting a dangerous precedent by issuing illegal executive orders and attempting to seize power from county attorneys and the Legislature. Our Caucus is reviewing all legal remedies to ensure appropriate constitutional separation of powers. https://t.co/hubtdDchTk
Arizona elected officials continue to react to Democrat Governor Katie Hobbs’ recent Executive Orders.
Earlier this week, Governor Hobbs signed two Executive Orders to “restore rights and protect LGBTQ+ Arizonans.” According to Hobbs’ Office, the Orders “ensure the state employee health care plan covers medically-necessary gender-affirming surgery” and bar “state agencies from funding, promoting, or supporting conversion therapy against LGBTQ+ Arizonans.”
Hobbs’ most-recent Executive Orders came just days after she signed another Order that would “centralize all abortion-related prosecutions under the Attorney General to ensure differences in applications of the law by county attorneys do not restrict access to legal abortions.”
On Wednesday, Senate President Pro Tempore T.J. Shope issued the following statement regarding the governor’s latest Orders: “Instead of helping families struggling to keep a roof over their heads, fill their tanks with gas and put food on the table, Governor Hobbs is making sure taxpayer dollars are instead going towards elective, sex change surgeries. The Governor continues to show just how tone deaf and out of touch she is with the majority of hard-working Arizonans. Director nominations hearings were suspended on Monday, and yet the Governor is already doubling down with another unilateral overreach. The Arizona Senate Majority Caucus is committed to checks and balances and will be reviewing all legal options to ensure appropriate constitutional separation of powers.”
Representative John Gillette took to Twitter to pose several questions to the state’s chief executive, writing, “Hobbs Signs EO to Allow State Employees to Have Sex Change procedures paid by State Health Insurance. 1. What happens to premiums? 2. Was the contract renegotiated? 3. What other elected surgery will get covered? Will BC/BS just cancel the contract as terms changed?
Hobbs Signs EO to Allow State Employees to Have Sex Change procedures paid by State Health Insurance. 1. What happens to premiums? 2. Was the contract renegotiated? 3. What other elective surgery will get covered? Will BC/BS just cancel the contract as terms changed?
— Rep. John Gillette AZ House LD30 (@AzRepGillette) June 29, 2023
Maricopa County Attorney Rachel Mitchell also responded to the governor’s order on abortion prosecutions, saying, “Our current governor took an entire category of potential offenses and is attempting to prevent locally elected county attorneys from reviewing and making charging decisions on those matters. But what happens next? What happens in three-and-a-half years? What happens when another person occupies the governor’s seat and attempts this kind of power grab? What other set of offenses might a governor in the future not like and remove from local prosecutors?”
County Attorney @Rachel1Mitchell responds to the Governors Executive Order. What's stopping the next Governor from doing similar power grabs? pic.twitter.com/cIGfw3uefy
