Catholic Edition Staff Writer

September 29, 2009

Several weeks ago, various Arizona abortionists and abortion facilities (Planned Parenthood among them) filed two separate lawsuits, one in state court, one in federal court. The suits sought to enjoin common sense laws recently enacted by the Arizona legislature related to informed consent for abortion, parental consent for minors, and health care rights of conscience. Absent any injunction, the various statutory provisions were to go into effect in Arizona at midnight, September 30, 2009.

These laws did not outlaw abortion (impossible until the Supreme Court case of Roe v. Wade and its judicial progeny are reversed), but rather sought to protect a woman‘s “right to know” the risks of abortion, and to protect her health by requiring, among other things, that women seeking abortion be given:.

1) the services of a trained physician to perform any surgical abortion rather than those of lesser educated nurses or physician’s assistants; and 2) the right to an in-person consultation with the physician who is going to perform the abortion, or a referring physician, at least 24 hours before the scheduled abortion.

The challenged laws also provided that a parent’s written consent to an abortion for their minor daughter be notarized to prevent a fraudulent signature from robbing parents of their constitutional rights to raise their children and provide for their well-being. Moreover, one section of the law, recognizing a long, fundamental American tradition of freedom of conscience, expanded existing Arizona conscience protection by making clear that certain Arizona health care professionals need not, among other things, “refer” patients to abortion providers or for so-called “medical abortions” if such a referral violated their religious or moral beliefs.

While the abortion lawyers representing certain independent abortion providers from Tucson filed in U.S. District Court alleging violations of the US Constitution, Planned Parenthood’s attorneys filed in Arizona state court alleging violations of the Arizona Constitution. Attorneys from the Bioethics Defense Fund and Life Legal Defense Fund, along with litigation co-counsel from the Center for Arizona Policy and the Alliance Defense Fund, attempted to intervene in support of the defendants in both cases to assist the state attorneys in upholding the challenged statutes, and to ensure that certain important interests of pro-life doctors, pharmacists and other pro-life organizations were vigorously advocated.

After an expedited period of approximately two weeks in which many legal pleadings and declarations were filed, the hearings in both state court and federal court occurred on Tuesday, September 29, 2009. After approximately 90 minutes of argument in each court, the Arizona state court and federal court judges reached different results on the different legal claims before them.

In the Arizona state case, Judge Donald Daughton denied the motion to intervene filed by various pro-life organizations. After the hearing, the judge issued a preliminary injunction that allows non-physicians (i.e., nurse practitioners) to continue to perform first trimester surgical abortions. The court also blocked the “in-person” by a physician consultation provision, and enjoined the requirement that parental consent be notarized, at least until the Arizona Secretary of State takes certain additional action. Finally, the judge also blocked the extension of healthcare rights of conscience protection concerning referrals. The state court decision did not provide a detailed legal analysis of the specific Arizona Constitutional provisions that support plaintiffs’ claims.

By contrast, the Arizona federal court Judge David Campell ruled in favor of the pro-woman and prolife legal protections challenged by certain Arizona abortionists. Judge Campell denied the abortionists’ request for preliminary injunction, and issued a detailed 23 page opinion that sets forth the plaintiffs’ failure of proof. The federal court opinion also discussed the settled federal case law undermining the plaintiffs’ claims for preliminary injunction. At the time of the hearing, Judge Campbell had not yet ruled on motions to intervene filed by legislators and pro-life organizations.

The bottom line is that several provisions of the challenged pro-life laws were upheld, including the requirement that a women be given 24 hours to reflect on the unique and momentous act of choosing to end the life of her unborn child. After similar legislation was vetoed by former Governor Janet Napolitano, this successful ruling now puts Arizona in the company of many other states that require informed consent with a one-day reflection period.

The court battles will now continue to the trial stage with many months of litigation ahead.

In the long fight to restore legal and cultural protection for unborn human life, Bioethics Defense Fund will continue to offer strategic legal services and consultation in these and other suits, as long as we have the resources to advocate for human rights from beginning to end.

For more information:

Alliance Defense Fund: www.alliancedefensefund.org

Bioethics Defense Fund: www.BDFund.org

Center for Arizona Policy: www.azpolicy.org

Life Legal Defense Foundation: www.LLDF.org