Arizona ACLU challenges fetal 'personhood' interpretation

The Arizona ACLU is challenging a new “personhood” clause, which seeks to give constitutional rights to the unborn in the state.

The ACLU’s challenge runs alongside numerous subsequent hearings taking place in the wake of the overturning of Roe v. Wade, as state legislators and abortion providers attempt to understand what is currently legal.

ACLU introduced the case after two separate abortion clinics shut down out of concerns that their practice was illegal, citing a 2021 law provision known as the Interpretation Policy.

The policy states that “The laws of this State shall be interpreted and construed to acknowledge, on behalf of an unborn child at every stage of development, all rights, privileges and immunities available to other persons, citizens and residents of this state, subject only to the Constitution of the United States and decisional interpretations thereof by the United States Supreme Court.”

The ACLU is concerned that the vague definitions may result in the accidental prosecution of their clients, Dr. Reuss and Dr. Isaacson. Both doctors have halted all abortion services until clarification is given.

The Arizona ACLU said, “Ample evidence shows that the Interpretation Policy should be struck down as unconstitutionally vague as applied to abortion. While the Interpretation Policy mandates that hundreds of civil and criminal privisions be ‘interpreted and construed’ to ‘acknowledge’ the rights of fertilized eggs, embryos, and fetuses at any stage of development, it provides no guidance on what that means in the abortion context.”

Current Arizona abortion law could be interpreted two ways over the following days. Regulations could remain the same as before the Supreme Court ruling, or struck down in favor of a law from before Roe v. Wade.

The first was introduced by Gov. Doug Ducey before the overturning of Roe v. Wade. The law signed in April bans abortions after 15 weeks of pregnancy, with exceptions to protect the mother’s health. It would have taken effect regardless of the SCOTUS decision 90 days after the end of the legislative session.

The other option, the 1901 Arizona Comstock Law, banned abortion in its entirety alongside any promotional advertising. The law was edited last year to prosecute the doctors rather than the mothers. Some state Republicans are arguing that the Comstock Law should now be enforced.

In their introduction, the Arizona ACLU said, “The dismantling of the long-held federal constitutional right to abortion has unleashed chaos in Arizona, raising questions about whether the Interpretation Policy can now be used in conjunction with other laws to prosecute abortion providers and their patients even though dozens of Arizona laws expressly permit and regulate abortion care.”