Arizona appeals court lifts injunction on 2009 abortion law

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[JURIST] The Arizona Court of Appeals [official website] on Thursday ended a two-year injunction [ruling, PDF] on portions of a law [HB 2564 text, PDF] that restricted abortion [JURIST news archive] practices. The original injunction by the Maricopa County Superior Court [official website] held the following provisions as “undue burdens” on a woman’s right to an abortion: prohibitions on anyone but a licensed physician performing an abortion; a requirement that women meet with the doctor personally 24 hours before an abortion (the injunction held that a phone call would suffice); that medical professionals have a right to refuse to perform even medically necessary abortions, provide certain contraceptives or the “morning after” pill; and a mandate that parents’ consent forms allowing their child to get an abortion be notarized. The appeals court reinstated all of these stipulations, suggesting that the lower judge had applied “strict scrutiny” in error rather than an “undue burden” test.

To be sure, the drafters of the Arizona Constitution deliberately created an individual right of privacy that is not expressly set forth in the federal Bill of Rights. But the specific and limited regulations here, substantial equivalent of which have already been held not to offend the penumbral right of privacy that gave rise to federal abortion rights, do not implicate fundamental rights that are in any way unique to Arizona, its history or the intent of the framers of its Constitution. The fundamental rule of judicial restraint is to avoid constitutional questions unless “absolutely necessary” to decide the case. Therefore, because Arizona’s citizens may “assert the right to choose as defined and articulated by the United States Supreme Court,” we too “reach no conclusion about whether the Arizona Constitution provides a right of choice.”

Planned Parenthood of Arizona [advocacy website], a party to the original suit, said the law’s enactment will have a severe impact [Arizona Daily Star report] on women in the state, many of whom have to take day-trips to have abortions. It is unknown if they will appeal.

Earlier this year, Arizona Governor Jan Brewer [official website] signed into law a bill outlawing abortions performed based on the sex or race of the fetus [JURIST report]. Representative Steve Montenegro sponsored HB 2442 and HB 2443 [legislative materials], which separately outlaw abortions based on the child’s sex or race. Under the new abortion law, a physician or health professional who does not report known or suspected violations will face felony charges and civil fines and may be liable for damages. In May, a judge for the US District Court for the District of South Dakota [official website] issued a preliminary injunction [order, PDF] blocking a South Dakota abortion regulation [HB 1217] requiring a 72-hour waiting period [JURIST report].

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