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Isaacson, et al. v. Brnovich, et al.

Filing date: 08.17.2021
This case challenges two Arizona measures that would ban abortion care if there is indication of fetal diagnosis in the patient’s reason and grant new “personhood” rights for fetuses, embryos and fertilized eggs.

(Updated 07.07.22) On June 25, an emergency request was made asking a federal court to block Arizona’s personhood law as applied to abortion. A hearing on the motion is scheduled for July 8.

The Center for Reproductive Rights and its partners filed the lawsuit in August 2021 challenging two Arizona abortion restrictions passed in April. One provision, which targets pregnant people facing complex considerations regarding their medical care, would ban abortion if there is any indication that the patient’s reason is a fetal condition or diagnosis.  The other restriction would grant “personhood” rights to fetuses, embryos, and fertilized eggs in a manner that threatens to criminalize essential medical care for pregnant patients and places them at risk of arbitrary prosecution for a vast array of actions that could harm an embryo or fetus.  

Filed in federal district court in Arizona, the lawsuit aims to secure a preliminary injunction before the measures take effect on September 29, 2021. The plaintiffs in the suit—two Arizona physicians, the Arizona Medical Association, National Council of Jewish Women Arizona, and the Arizona National Organization of Women—are being represented by the Center, the American Civil Liberties Union, and the ACLU of Arizona. 

Defendants in the lawsuit include the Arizona Attorney General, every Arizona County Attorney, the Arizona Medical Board and certain officials of the board, and the Arizona Department of Health Services and certain officials of the department, all of whom would have a role in the enforcement of the challenged provisions. 

Arizona has several existing abortion restrictions that make it difficult for people to access abortion care, including a mandatory 24-hour waiting period for people seeking abortion; a ban on the use of telemedicine for medication abortion services; and a law banning advanced practice clinicians like nurse practitioners from providing abortion care. If the U.S. Supreme Court overturns Roe v. Wade, Arizona and nearly half the states in the country are poised to ban abortion entirely.

The law being challenged adds a fetal diagnosis reason ban to Arizona’s existing sex and race reason bans enacted in 2011, taking away patients’ constitutional right to choose a pre-viability abortion. The “personhood requirement” would anoint fetuses, embryos, and fertilized eggs with the same “rights and privileges” as “other persons” for purposes of all Arizona law. This sweeping measure threatens both health care providers and pregnant women with criminal liability for a wide range of actions that could impact a pregnancy. 

Center Attorneys: Jessica Sklarsky, Gail Deady, Jen Rasay, Cici Coquillette, Jared Lindo

Co-Counsel/Cooperating Attorneys: Alexa Kolbi-Molinas and Rebecca Chan, American Civil Liberties Union; Victoria Lopez, American Civil Liberties Union Foundation of Arizona

Plaintiffs: Paul A. Isaacson, M.D., on behalf of himself and his patients; Eric M. Reuss, M.D., M.P.H,; on behalf of himself and his patients; National Council of Jewish Women (Arizona Section), Inc.; Arizona National Organization For Women; and Arizona Medical Association, on behalf of itself, its members and its members’ patients

Status:

We filed our complaint and request for a preliminary injunction (PI) in federal district court on August 17, 2021. A hearing on the request for a PI took place September 22. On September 28, a federal district court judge granted the request to temporarily block the provision that would ban abortions sought due to the presence or presumed presence of a fetal condition. However, the provision that grants personhood “rights, privileges, and immunities” to fetuses, embryos, and fertilized eggs was allowed to take effect. The State appealed the injunction to the U.S. Court of Appeals for the Ninth Circuit and also requested a partial stay of the injunction while the appeal is pending, to allow the State to enforce the reason ban.  We cross-appealed on the denial of the injunction as to the privileges and immunities provision.  The district court denied the request for a partial stay on October 18, and the appellate court denied the request on November 26. We filed our principal and response brief at the appellate court on December 20 and on December 27, amicus briefs were filed in support of our case. While the appeal was in briefing, on December 10, the State also filed an emergency application with the U.S. Supreme Court requesting a stay of the injunction while the appeal is pending. We filed our response on December 21 and are now awaiting a ruling. The appeal at the Ninth Circuit is fully briefed and we are awaiting an oral argument date. At the district court, the case is now in discovery.

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