Arizona defends law prohibiting aborting children based on a genetic anomaly, race, or sex

By Dave Andrusko

Both sides have now filed briefs with the Supreme Court which will determine whether Arizona’s prohibition against aborting children based on a genetic anomaly, race, or sex—SB 1457–will be allowed to stand.

On December 14, Arizona Attorney General Mark Brnovich filed his brief with Justice Elena Kagan. Justice Kagan, “who handles emergency matters arising from Arizona, comes after the state lost two rounds in the lower courts, where the law remains blocked,” according to John Kruzel.

“Brnovich argued in court papers that the law furthers Arizona’s interest in protecting the disability community from discrimination,” the Associated Press reported. He added in his brief

“This court has never otherwise recognized the purported right at issue — a right to race-, sex-, or genetic-selective abortions. The right to perform an abortion based solely on the results of genetic testing is novel, with no basis in the Constitution’s text or the nation’s history and traditions.”

In October, Federal Judge Douglas Rayes denied Brnovich’s request to stay his injunction (which was issued in September) pending appeal of Rayes’s decision to put SB 1457 on hold. 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.”

Then, last month, U.S. Court of Appeals for the 9th Circuit “left the district court’s order in place pending appeal, prompting the state to come to the Supreme Court and ask the justices to reinstate the law while the state’s appeals proceed,” according to Amy Howe. “Brnovich added that the courts of appeals are divided on the constitutionality of laws like Arizona’s – a factor that the justices often consider in deciding whether to grant review.”

Courthouse News’s Kelsey Reichmann reported that on December 23, Jessica Sklarsky, an attorney from the Center for Reproductive Rights, wrote that the Reason Regulation [SB 1457]  

was internally inconsistent citing the penalty to doctors that have “some knowledge” that an abortion they provide is “to some degree motivated” by genetic abnormalities, which she claims is “a nebulous term that, as statutorily defined, requires physicians to make difficult-to-impossible predictions about the origin and future course of potential fetal conditions.” 

Brnovich said there was nothing “nebulous” about the law. The Reason Regulation  sends ‘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.’”