Thread by @JulieGunnigle

The Arizona District Court is hearing oral arguments on SB1457 RIGHT NOW. Follow @ncjwarizona and this thread to hear how it's going.

Kicking off and it's a hot bench (that means that the judge has a lot of questions).

Of note at the outset, the judge has adopted the language of the Plaintiffs that this is a "Reason Ban" and not a "Non-discrimination Provision" as the Attorney General argues.

At issue is the prohibition against physicians providing abortions to people who are carrying fetuses with genetic abnormalities.

The Court is now questioning whether the Reason Ban is a "ban" rather than a "manner provision." The Plaintiffs are collectively arguing that providers will no longer perform abortions when a fetal abnormality is present when the ban goes into effect on Sept 28.

The Court seems focused on this distinction. The question is now on the floor as to how SB1457 is an undue burden on people seeking an abortion.

The Plaintiffs' response is jaw-dropping. The doctor has to ask why the patient is seeking an abortion, and if the reason is because of a genetic abnormality the doctor has to tell the patient that their abortion is unlawful.

Note: the AG has argued that SB1457 is not really a ban because the patient could decide not to tell the doctor or lie about a diagnosis of a genetic abnormality.

The AG has offered three government interests for the Reason Ban:
1) protecting the disability community from discrimination;
2) protecting patients from coercive medical practices; 3) protecting the integrity of the medical profession.

Plaintiffs have disagreed that any of these interests are served by criminalizing reproductive healthcare. If anything, as Plaintiffs argue, this law compromises the relationship between doctors and patients and the integrity of the profession.

Oh! We have moved on to the 1st Amendment claims the Plaintiffs have brought.

Plaintiffs have argued that the "government cannot limit access to even discretionary benefits in exchange for accessing other rights."

In particular, this law would require patients to have less-than-open and honest communication with their doctors if they want to access abortion care.

The Court has a beautiful third-party standing question (pay attention law students): Are there limits to which rights a doctor can assert on behalf of their patients?

In particular, the Court is considering whether there is a first amendment right to communicate openly and honestly with their doctors, even if their communication is not medically relevant.

It matters because there is some authority that says that the motives of a patient for obtaining an abortion are not medically relevant.

And now we are on to the vagueness claim. What exactly this law is criminalizing was a big issue during "debate" on SB1457.

Debate is in sarcastiquotes because lawmakers shut down clarifying questioning while this bill was in committee.

The Plaintiffs have argued that the personhood provision is particularly vague. It is not clear how doctors will be held accountable if they violate the personhood provision that gives rights, privileges, and immunities to fertilized eggs.

Plaintiffs are arguing that SB1457 is both vague in its nature and effect. The "personhood provision" is an interpretive rule for every other Arizona law.

Here's what it says:
"THE LAWS OF THIS STATE SHALL BE INTERPRETED AND CONSTRUED TO ACKNOWLEDGE, ON BEHALF OF AN UNBORN CHILD AT EVERY STAGE OF DEVELOPMENT, ALL RIGHTS, PRIVILEGES AND IMMUNITIES AVAILABLE TO OTHER PERSONS, CITIZEN AND RESIDENTS OF THIS STATE..."

Sorry to shout at you; I'm cutting and pasting on the fly.

Can YOU make sense of the "personhood provision"? Does a fertilized egg get due process? The right to a jury? The right to be free from unreasonable searches and seizures?

We are now on to the Defendants' presentation.

Defendants' position is that the Reason Ban doesn't prohibit abortions when a genetic abnormality is present, it just can't be the *only* reason a patient is seeking an abortion.

The Court's question is important: is a Doctor going to be looking at a mandatory affidavit saying "I didn't perform an abortion because of a genetic abnormality" and realize that means "solely because of" a genetic abnormality.

I've just learned a new phrase (maybe invented by the AG): the mixed-motive abortion.

The AGs argument is really splitting hairs about what "because of" means. Does it mean that genetic abnormality is factor? Does it mean that the genetic abnormality is the sole reason?

Real question from the Court just now: does the woman need a lawyer to access an abortion?

Side note: I don't know how abortion providers operate in Arizona without a JD or an army of lawyers on their side. Deciphering the laws that #AzLeg passes would be nearly impossible without one or both.

Woah. A question to the Defendants about whether a patient needs to make a direct disclosure about a genetic abnormality for a doctor to have liability under SB1457.

Answer: "Liability could attach without express disclosure."

Defendants just argued that the genetic abnormality provision is not a ban because it might not be the "sole" reason for the abortion, or because the patient could tell the truth to one doctor who then refers to another doctor to whom the patient does not disclose the diagnosis.

I am not doing this argument justice. It's shocking what I just heard.

The AG just opined that it would be probable that a patient who is told by a doctor that the abortion they are seeking is unlawful, that the patient would seek out another doctor and lie.

Question: could a provider tell a patient "you do not need to tell me the reason for seeking an abortion. If you tell me that you want to terminate due to a genetic abnormality I cannot perform the abortion. Another provider could, if you do not disclose the abnormality."

Answer from the AG: Yes.

Not a question on the record, but I personally am seething.
How on earth is this the state of the law?
How is SB1457 anything other than an encouragement to selectively disclose or lie about a genetic abnormality?

Great question from the Court: the AG is arguing that SB1457 is not going to stop pre-viability abortions. How is your interest in stopping "discrimination of disabled people" advanced if this law does not prevent abortions?

The Court does not seem satisfied with the AGs response (neither am I).

And, just like that, we are on recess. Tweeting to resume in 15 minutes.

We are back on the record. My new challenge is getting through the remainder of the argument without the "Breathe" app on my watch telling me to relax...

Question from the Court: Is there anything I can take away from this section other than that it intends to tell the patient that an abortion is unlawful and make it less likely that a woman will obtain an abortion?

Again, a less than satisfying response. The Court is now asking the AG hypotheticals about what a doctor can do under SB1457.

He starts with a hypothetical of a patient who is excited about a pregnancy, gets a diagnosis of a genetic abnormality, and then seeks an abortion.

Can the doctor perform that abortion?

Yes, says AG. So long as there is not a disclosure that it is the "sole reason" for the abortion.

Next hypothetical: A patient gets a diagnosis of a genetic abnormality, discloses that they are terminating the pregnancy because they cannot afford the cost of raising a child with a disability.

Can the doctor perform that abortion?

The AG: Yes. No prosecutor would take that case.

(My commentary: Ha! Have you seen the cases rogue prosecutors take???)

Question from the Court: Do patients have a first amendment right to communicate medically relevant information to their providers?

AG: no.

The discussion has transitioned to what a prosecutor could do.

In many cases, prosecutors use circumstantial evidence. The question is now what "less than express disclosure" and whether the criminal definition of "knowingly" includes other circumstances.

AG was asked whether he knows the jury instructions for "knowingly" and whether other circumstances of a pregnancy could be used against a doctor in a criminal prosecution.

AG says that there can be "some other circumstances" other than direct disclosure that an abortion is only sought because of a genetic abnormality.

Here comes the question: can the personhood provision create a manslaughter charge for a pregnant person who fails to take care of themselves during the pregnancy? Can it create criminal liability for a doctor performing the abortion?

AG: No, SB1457 exempts those sorts of charges from criminal enforcement.

Court says it has heard enough and has had its questions answered.

Plaintiffs' close with arguing that the AG has provided vague answers or "I don't know" to a host of questions about how SB1457 will be interpreted if it is allowed to go into effect on September 29th.

This uncertainty alone is a reason to enjoin the enforcement of the law.

And, with that, the matter is now in the hands of the Court.