On Tuesday, the Arizona Supreme Court held oral arguments on the state’s two conflicting abortion bans in the case Planned Parenthood et al v. Kristin Mayes/Hazelrigg.
The court is determining the fate of two conflicting laws: the total abortion ban outlawing all but life-saving abortions, in existence prior to Arizona achieving statehood with versions dating back to Arizona’s first laws as a territory in 1864, and the 2022 ban restricting abortions to 15 weeks’ gestation except in cases of medical emergency. The latter law was codified just months before the Supreme Court overturnedRoe v. Wade in Dobbs v. Jackson Women’s Health Organization.
Arizona Attorney General Kris Mayes, who has refused to defend the pre-statehood ban, declared the day before the oral arguments that the ban would relegate Arizonans to a lesser, premodern society.
“Arizonans cannot be shoved back to the 1860s,” said Mayes.
Tomorrow, the Arizona Supreme Court will hear arguments on the harmonization of two conflicting statutes on abortion. The consequences of this case are huge. Arizonans cannot be shoved back to the 1860s. https://t.co/rrfc7wI5AJ
Gov. Katie Hobbs encouraged voters to sign the ballot petition to legalize all abortion up to birth.
If you’re as outraged as I am that there’s a possibility for a Civil War-era abortion ban to go into effect in 2023, then take action right now and sign the petition to put a right to abortion on Arizona’s ballot next November by going to https://t.co/ZYodddLbWGpic.twitter.com/9NqlGdl3fX
Stepping up to defend the pre-statehood ban in Mayes’ stead and first to speak during Tuesday’s oral arguments was Jake Warner, an attorney with the Scottsdale-based conservative Christian legal organization, Alliance Defending Freedom (ADF).
Warner proposed that a certain continuity exists between the pre-statehood ban, which the court referred to as the “territorial law,” and the 2022 ban limiting abortions to 15 weeks’ gestation.
Per Warner, the pre-statehood ban imposes a certain authority on the 2022 statute: all abortions prior to 15 weeks must be life-saving, and that abortions after 15 weeks must not only be life-saving but based on a medical emergency. Warner said that the language of the 2022 statute gave express direction to give deference to the pre-statehood ban.
Chief Justice Robert Brutinel and Vice Chief Justice Ann Timmer didn’t appear convinced of the argument. The pair indicated that physicians would be confused by the two statutes.
"Arizona’s law affirms that life is a human right. I am hopeful that the court will uphold this life-saving principle." – ADF's Jake Warner pic.twitter.com/YmlmnV4zvy
On the subject of ectopic pregnancies — an oft-referenced terminal condition in the abortion debate — Warner said that physicians wouldn’t be punished for their removal, since ectopic pregnancies constitute a medical emergency and their removal constitutes a life-saving measure.
Warner said that the 2022 restriction doesn’t repeal the pre-statehood abortion ban, because it created no new right to an abortion. Brutinel posited that the legislative intent with the newer law was to legalize abortion up to 15 weeks’ gestation. Warner countered that the legislature’s intent with its 2022 restriction was to ensure that it protected unborn life to the greatest extent possible.
Justice Clint Bolick questioned how the current law doesn’t conflict with the territorial ban, challenging the implication that something that wasn’t able to be prosecuted prior to Dobbs could now be prosecuted. Likewise, Brutinel said that a physician couldn’t have been prosecuted for conducting abortions under the new law. Warner responded that the language of the 2022 statute only purports to regulate terminations after 15 weeks, not before.
Counsel for Planned Parenthood Arizona, Andy Gaona, argued that the state legislature has displayed a progressive permissiveness when it comes to allowable abortions. Gaona stopped short of declaring the existence of a right to abortion at the outset of his arguments, but did declare, repeatedly, that abortion constituted a form of health care in closing.
“We have never maintained the right to an abortion exists,” said Gaona. “Abortion is health care. I’m not sure anyone has ever said that in this courtroom.”
Planned Parenthood counsel closing remarks before the Arizona Supreme Court: "Abortion is health care. I'm not sure anyone has ever said that in this courtroom." pic.twitter.com/NKh4O6fD6v
Contrary to what Warner posited, Gaona argued that the 2022 law allows abortions up to 15 weeks without prosecutions, citing the previous court of appeals decision. Timmer asked whether the state legislature would need to declare a right to an abortion in order to permit that interpretation; Gaona responded that the legislature only needs to regulate criminal conduct to do so, arguing that criminal laws allow that which they don’t criminalize.
Bolick pointed out the 2022 law specifically referenced the territorial law in its construction:
“This act does not […] Repeal, by implication or otherwise, section 13-3603, Arizona Revised Statutes, or any other applicable state law regulating or restricting abortion,” stated the provision.
Gaona disagreed. He said that the court of appeals’ harmonization of the statutes didn’t repeal the pre-statehood law, even by removing prosecution, because the 2022 law now qualifies as the criminal prohibition for elective abortions. Gaona clarified that a physician couldn’t be prosecuted under the territorial statute, but could under the 2022 law if they conduct abortions after 15 weeks.
Gaona argued that a series of statutes that aren’t self-referential or fail to include language repealing an old statute qualify as an implied repeal. Gaona said that if the legislature’s intent was to resurrect the pre-statehood ban, it should’ve stated that clearly “and it clearly didn’t do that.”
Corinne Murdock is a reporter for AZ Free News. Follow her latest on Twitter, or email tips to corinne@azfreenews.com.
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.
The Scottsdale-based Alliance Defending Freedom (ADF) secured a federal court ruling that effectively halts mail-order abortions.
On Wednesday, the Fifth Circuit Court of Appeals ruled that the Food and Drug Administration (FDA) must reinstate its safety restrictions for mifepristone use. In effect, the ruling limits mifepristone’s use to the first seven weeks of pregnancy, as well as requires an in-person visit with a provider prior to prescription.
This is the Texas court’s second ruling against mifepristone access. In April, the court issued an injunction against the abortion drug. The same hour of that injunction, a Washington federal court ruled that the FDA must continue providing mifepristone. Several weeks after those conflicting orders, the Supreme Court halted the Texas court’s injunction until all litigation had concluded.
BREAKING🚨 The 5th Circuit Court of Appeals has ruled the FDA must do its job and restore crucial safeguards around chemical abortion drugs, including ending illegal mail-order abortions. It's a significant victory for the doctors we represent, and for women's health and safety.
ADF sued the FDA last November on behalf of four pro-life medical groups, who argued that mifepristone shouldn’t have been approved by the FDA over 20 years ago and should be removed from the market.
The FDA approved mifepristone in 2000, during the Clinton administration, using a fast-tracked approval process. The FDA justified approval by reclassifying abortion as a “serious or life-threatening illness” and mifepristone as a “meaningful therapeutic benefit.” In a 2008 report, the Governmental Accountability Office (GAO) noted the medical community’s widespread criticism of the basis for mifepristone’s approval.
“Critics have argued that unwanted pregnancy should not be considered a serious or life-threatening illness,” stated the GAO report.
Mifepristone’s efficacy and safety are dubious. The drug’s usage has been linked to hundreds of cases of infections and death, if not more. Government studies have estimated adverse effects of the drug occurring in as many as one in five women. The FDA also failed to convince the New Orleans court of the drug’s safety.
“[I]n loosening mifepristone’s safety restrictions, [the] FDA failed to address several important concerns about whether the drug would be safe for the women who use it,” read the majority opinion.
Yet, state leaders have advocated for access to the abortion drug. Attorney General Kris Mayes’ office claims the drug is “incredibly safe” and that restrictions on it are “unnecessary.”
In June, Hobbs issued an executive order usurping county attorneys’ authority over prosecuting abortion law violations.
In March, Mayes encouraged pharmacies to give out abortion pills. In May, Mayes joined an amicus brief to advocate for the upholding of mifepristone’s FDA approval.
Hours after the circuit court ruling, Mayes’ new Reproductive Rights Unit issued guidance on how individuals can hide their data, such as internet history and communications, when seeking abortions. The new unit is headed by deputy solicitor general Hayleigh Crawford.
The attorney general didn’t issue a direct response to this week’s ruling, but the data privacy guidance and corresponding meeting appeared to be an indirect response of sorts.
Arizona stands by its reproductive health providers and those seeking care. Thank you to these stellar advocates for joining us yesterday to discuss our new data privacy guidance. Ft. @BreThomas68, @LegallyLove, Sheena Chiang, @JodiLiggett, Dr. @CadeyHarrel and Tonya Irick. pic.twitter.com/Ek8TsVDjTq
— AZ Attorney General Kris Mayes (@AZAGMayes) August 17, 2023
Featured guests at the meeting included:
Chris Love, board member and senior advisor for Planned Parenthood Advocates of Arizona, and attorney at Kewenvoyouma Law;
Sheena Chiang, co-chair of the Planned Parenthood Arizona Board of Directors, and attorney for the Maricopa County Legal Defender’s office;
Jodi Liggett, founder of the progressive think tank and advocacy group Arizona Center for Women’s Advancement, former deputy chief of staff for Phoenix Mayor Kate Gallego, former vice president of external affairs and executive director for Planned Parenthood of Arizona, former senior policy advisor for Phoenix Mayor Greg Stanton, former CEO of Arizona Foundation for Women, and former policy advisor for former Gov. Jane Hull;
Bré Thomas, CEO of Affirm Sexual and Reproductive Health For All, former Arizona Department of Health Services manager and senior policy advisor, former Arizona Department of Economic Security executive assistant to the deputy director, and former women’s health policy advisor for former Gov. Janet Napolitano;
Cadey Harrel, doctor and founder of Agave Community Health and Wellness;
Tonya Irick, director of abortion clinic Family Planning Associates Medical Group
We brought together health care providers, advocates & community leaders to discuss @arizonaago's new data privacy guidance for those seeking reproductive health care. In a world in which we do everything online, we leave a trail in web and app data. Privacy should be the default pic.twitter.com/pFcbpcxzJ2
— AZ Attorney General Kris Mayes (@AZAGMayes) August 17, 2023
Corinne Murdock is a reporter for AZ Free News. Follow her latest on Twitter, or email tips to corinne@azfreenews.com.
The Scottsdale legal nonprofit Alliance Defending Freedom (ADF) won a religious freedom case at the Supreme Court of the United States (SCOTUS).
SCOTUS ruled 6-3 at the end of June in 303 Creative v. Elenis against Colorado’s anti-discrimination law, Colorado Anti-Discrimination Act (CADA), as unconstitutional. The law would prohibit a Christian wedding website designer from refusing to create a same-sex wedding website.
The plaintiff, Lorie Smith, holds the Christian belief that marriage exists only between one man and one woman, and contests against the possibility that she either must produce content that “contradicts Biblical truth,” such as same-sex marriages, or cease business.
Ultimately, SCOTUS determined in a majority opinion written by Justice Neil Gorsuch that Smith’s creative expression constituted speech and that CADA therefore violated the First Amendment’s Free Speech Clause.
“Ms. Smith’s websites will express and communicate ideas — namely, those that ‘celebrate and promote the couple’s wedding and unique love story’ and those ‘celebrat[e] and promot[e]’ what Ms. Smith understands to be a marriage,” stated Gorsuch.
"This is a victory not just for me, but for all of us. Whether you share my beliefs or disagree with them, free speech is for everyone. And the government shouldn’t force anyone to say something they don’t believe. The Court’s decision means we are all more free today than we… pic.twitter.com/wXHqZgAWL2
— Alliance Defending Freedom (@ADFLegal) June 30, 2023
Gorsuch further criticized CADA for its fullest possible outcome: compelling speech of all manners and kinds from any commissioned person if their customer belongs to a CADA-protected class.
“Under Colorado’s logic, the government may compel anyone who speaks for pay on a given topic to accept all commissions on that same topic — no matter the message — if the topic somehow implicates a customer’s statutorily protected trait,” said Gorsuch. “Taken seriously, that principle would allow the government to force all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe on pain of penalty. The Court’s precedents recognize the First Amendment tolerates none of that.”
Smith does have LGBTQ clients; however, Smith won’t create content that runs counter to her beliefs.
After the SCOTUS ruling, ADF CEO and lead counsel Kristen Waggoner stated that differences of beliefs don’t constitute discrimination.
“Disagreement isn’t discrimination, and the government can’t mislabel speech as discrimination to censor it,” said Waggoner. “As the court highlighted, her decisions to create speech always turn on what message is requested, never on who requests it. [T]he government has never needed to compel speech to ensure access to goods and services.”
The U.S. Supreme Court has rightly reaffirmed that the government can’t force Americans to say things they don’t believe. The court reiterated that it’s unconstitutional for the state to eliminate from the public square ideas it dislikes, including the belief that marriage is the… https://t.co/9BtiPg0skn
Following the ruling, critics alleged that Smith fabricated a request for a same-sex wedding website after a news article insinuated she did. Colorado Attorney General Phil Weiser also derided Smith’s complaint as “a made-up case without the benefit of any real facts or customers.” ADF and Smith rejected those claims.
Corinne Murdock is a reporter for AZ Free News. Follow her latest on Twitter, or email tips to corinne@azfreenews.com.
A Christian university in Arizona scored a win for justice this week, ending a two-month legal battle with a local school district.
On Thursday, the Arizona-based Alliance Defending Freedom (ADF) announced a settlement between Arizona Christian University (ACU) and the Washington Elementary School District. The lawsuit, which was filed in the United States District Court for the District of Arizona, originated when the District “decided to terminate its (eleven-year) relationship with Arizona Christian and its students solely because of their religious status and beliefs on biblical marriage and sexuality.”
ACU President Len Munsil claimed victory with the settlement, saying, “This is a complete vindication of the rights of our students to be able to participate as student-teachers in a public school district without fear of religious discrimination. We obtained everything we wanted in this new agreement, without any sacrifice or compromise to our beliefs and our university’s religious purpose. We look forward to a continued beneficial partnership that serves ACU student-teachers and the students, faculty, and staff of the WESD. And we are so grateful for the team at Alliance Defending Freedom for their excellent advocacy for our religious freedoms.”
According to ADF, the “district’s board voted Wednesday night to enter a new agreement allowing ACU students to teach in the district once again” The district also paid $25,000 in attorneys’ fees. The motion to approve the settlement passed the Washington Elementary School District’s Governing Board 4-1. Members Jenni Abbott-Bayardi, Kyle Clayton, Lindsey M Peterson, and Nikkie Gomez-Whaley voted to approve, while Tamillia Valenzuela opposed this resolution.
ADF Senior Counsel and Vice President of U.S. Litigation David Cortman also weighed in on the settlement, stating, “By discriminating against Arizona Christian University and denying it an opportunity to participate in the student-teacher program because of its religious status and beliefs, the school district was in blatant violation of the U.S. Constitution, not to mention state law that protects ACU’s religious freedom. At a time when a critical shortage of qualified, caring teachers exists, the Washington Elementary School District board did the right thing by prioritizing the needs of elementary school children and agreeing to partner once again with ACU’s student-teachers.”
West Valley lawmaker Anthony Kern, who had been closely following this situation from the beginning, opined on the good news for ACU, tweeting, “Good news for the Constitution and religious freedom; bad news for “Cat Ears” and the rest of the Democrats on the Washington Elementary School Board. BTW – how much do the taxpayers have to pay??”
Good news for the Constitution and religious freedom; bad news for "Cat Ears" and the rest of the Democrats on the Washington Elementary School Board.
