Judicial

As expected, federal judge refuses to stay his injunction while Arizona appeals his decision rejecting a ban on abortion when the sole reason is a diagnosis of genetic abnormality

By Dave Andrusko

Federal Judge Douglas Rayes, as expected, denied Arizona Attorney General Mark Brnovich’s request to stay his injunction pending appeal of the judge’s decision to put on hold a law that prohibit abortions sought solely because of a genetic abnormality in the baby. Judge Rayes summarily rejected Brnovich’s request to allow the law to go into effect while the case is before the 9th Circuit as an “emergency”. 

“Brnovich argues that the Legislature intended ‘to send an unambiguous message that children with genetic abnormalities, whether born or unborn, are equal in dignity and value to their peers without genetic abnormalities, born or unborn,’” according to Arizonalaw.blogspot (arizonalawsblogspot 2021/09/breaking-judge-refuses-to-block-arizona.html). “While the law is enjoined, doctors can continue performing abortions knowing that the abortion is sought solely because of a genetic abnormality,” the attorney general added. “This certainly constitutes irreparable harm.”

Rayes’ response in denying the stay? The state’s “abstract injury is outweighed by the real-world harms a stay would visit upon the provider Plaintiffs and their patients.” 

Rayes, an appointee of former President Obama, originally rejected the law, signed by Gov. Gov. Doug Ducey, just eight hours before it was to go into effect on September 28. Arizona’s SB 1457 gave an unsympathetic Rayes a chance to reconsider whether the state may forbid an abortionist from knowingly performing an abortion because the child has been prenatally diagnosed with a genetic anomaly, most often Down syndrome. Arizona already prohibits abortions because of an unborn baby’s race or sex.

Judge Rayes showed little patience for the state of Arizona defense of SB 1457. “The mechanism Arizona has chosen is not designed to encourage women to choose childbirth,” Rayes wrote in the 30-page decision. “It is designed to thwart them from making any other choice… Arizona may not further its interest by erecting a substantial obstacle in the paths of women who have chosen to terminate their pre-viability pregnancies, which is what Arizona has done here.

Contra Judge Rayes, bans on “discrimination-based” (or “reason-based”) abortion, which have offered the federal judiciary a chance to rethink the absence of any limitation on abortion, picked up traction this session, passing in state such as Arizona and South Dakota. “2021 has been a breakthrough year for legislation in several states seeking to prohibit abortions based solely on a prenatal diagnosis of Down syndrome.” according to the Associated Press’ David Cray.

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