Less than two weeks after the Supreme Court heard oral argument in a case urging the justices to overturn their landmark rulings in Roe v. Wade and Planned Parenthood v. Casey, the state of Arizona asked the court to allow it to enforce a law that bars doctors from performing abortions if the sole reason for the abortion is a genetic abnormality of the fetus, such as Down syndrome. The state wants the justices to intervene on an emergency basis and lift a lower court’s order that has blocked the law while litigation over its constitutionality proceeds.
Even if Roe and Casey remain good law once the court issues its decision in Dobbs v. Jackson Women’s Health Organization, Arizona told the justices, the Supreme Court has never recognized a right to an abortion because of a genetic abnormality.
The case, Brnovich v. Isaacson, originated as a lawsuit challenging the Arizona law, which was enacted in April and was originally scheduled to take effect in September. Two abortion providers, the Arizona Medical Association, and other challengers argued that the law is unconstitutional because it violates the right, established in Roe and reaffirmed in Casey, to obtain an abortion before the point of viability – the point, usually around the 24th week of pregnancy, when the fetus can survive outside the womb.
A federal district court in Arizona temporarily blocked the state from enforcing the law, reasoning that it imposes an undue burden on the ability to obtain an abortion. The 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 on Tuesday afternoon and ask the justices to reinstate the law while the state’s appeals proceed.
Arizona Attorney General Mark Brnovich told the justices that the law is intended to guard against “coercive health practices that encourage” people to obtain an abortion when genetic abnormalities are diagnosed and to protect “the integrity and ethics of the medical profession by preventing doctors from becoming witting participants in genetic-abnormality-selective abortions.” 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. Moreover, he argued, Arizona’s ban is “consistent with the language and reasoning of Roe and Casey”: Roe, he contended, left open the possibility that states could restrict abortion, while Casey made clear that Pennsylvania’s ban on sex-selective abortion was not before the justices.
The state’s request goes to Justice Elena Kagan, who handles emergency appeals from the 9th Circuit. Kagan can act on the request on her own or, as is more likely, refer it to the full court.
This post is also published on SCOTUSblog.