UPDATE, 3/8, 3pm: House Speaker Ben Toma and Senate President Warren Petersen CAN INTERVENE in the lawsuit challenging a 2021 Arizona ban on abortion procedures undertaken due to a genetic abnormality. While Judge Douglas Rayes agreed that the leaders did not comply with the law's provision that they get authorization from a majority of their colleagues, the older, more general Arizona law permitting intervention still allowed them to jump into this now-frozen case.
The case is on hold pending an appeal of Judge Rayes' ruling permitting the genetic abnormality ban to go into effect. Plaintiffs are contending it is unconstitutionally vague, but Rayes ruled that that claim was not yet ripe for deciding.
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ORIGINAL ARTICLE, 2/24: "GOP Leaders To Judge: New Legislative Rules Permit Us To Ignore Part of 2021 Law In Order To Protect Rest Of the Abortion Restriction Measure (READ Filings)"
When Arizona lawmakers passed their 2021 anti-abortion law prohibiting procedures solely because of a genetic abnormality and declaring "personhood" for fetuses, they added a clause saying the Legislature could subsequently pass a concurrent resolution to appoint members to intervene in any resulting legal action.
The measure has been in the courts ever since, and earlier this month, House Speaker Ben Toma and Senate President Warren Petersen - through their attorneys at the Alliance Defending Freedom - asked the judge to allow them to intervene.
Plaintiffs - including the Arizona Medical Association and the Arizona chapters of the National Organization of Women and the National Council of Jewish Women - objected, noting that the GOP leaders had not sought the approval of the Legislature.
Today, Toma and Petersen told the Court that one of the reasons they did not need to get permission is because they changed the rules this year to allow them to act "on behalf of" their respective houses. "Thus, even without a formal concurrent resolution, the practical requirements of Section 16 are satisfied because the President and Speaker act on behalf of their houses under the Legislature’s new rules."
(The Legislative rule changes already came to the public's attention earlier this year when it was learned that they exempted themselves from Public Records laws, and will destroy emails after only 90 days)
Toma and Petersen make other arguments as to why they should be allowed to intervene in the District Court case, including that new Attorney General Kris Mayes will not properly defend the law.
Mayes said she would not take a position on the legislature's attempt to intervene. Her brief Response (below), filed last week, then went further: "Additionally, Attorney General Mayes advises this Court that she has concluded the state laws challenged in this litigation are unconstitutional. She will not defend the constitutionality of those laws going forward."
(Arizona's Law reported earlier this week that the new AG is looking "on a case by case basis, we determine what role, if any, we want in the case going forward.")
Last month, Judge Douglas Rayes ruled that the prohibition on genetic abnormality-prompted abortion procedures can go into effect, in light of the Supreme Court's Dobbs Opinion, reversing Roe v. Wade. That decision is being appealed to the 9th Circuit, and the rest of the District Court case is now on hold.
"AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet.
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