PHOENIX — Arizona won’t force women to give birth in cases where a fetus has a genetic abnormality, at least not now.
SB 1457 came up one vote short on Wednesday as Sen. Tyler Pace, R-Mesa, sided with all 14 Democrats in refusing to make it a crime for a doctor to terminate a pregnancy knowing it is being sought “because of a genetic abnormality of the child.’’ That same crime, which can carry a year in state prison, could also be applied to anyone who assisted, a category that backers acknowledged could extend from nurses to clerical staff.
“I’m not supportive of abortion in many of its ways,’’ he told colleagues. But Pace said he is hesitant to start criminalizing health care decisions -- especially with the way this measure is worded.
Wednesday’s vote may not be the final word.
Sen. Nancy Barto, R-Phoenix, who is the sponsor of SB 1457, said she would try to craft language designed to address Pace’s concerns and get him to provide the required 16th vote.
That, however, would have to be inserted into another bill as it is too late to amend this one, even if Barto can have it resurrected. But at this point Pace was apparently unwilling to accept her assurances and vote for the plan so it could be sent to Gov. Doug Ducey who has signed every abortion measure that has reached his desk.
More to the point, it remains unclear whether there is any way for Barto to alter the issue to Pace’s satisfaction. The problems he cited are not subject to simple fixes.
It starts with the fact that elective abortions remain legal in Arizona. So any woman is free to terminate a pregnancy, at least before a fetus is viable, without providing a reason.
Pace questioned what happens if a woman goes to a doctor seeking an elective abortion and, during the course of an examination, it is determined there are genetic abnormalities in the fetus.
“Would the physician be able to perform the abortion under the elective option?’’ he asked. “Or would the knowledge of that cause the physician to be prohibited from performing that?’’
Along the same lines, Pace said a doctor may be approached by a women seeking to terminate her pregnancy.
“What does a doctor go off of?’’ he asked. “How does a doctor know it’s for the express purpose of a genetic abnormality?’’
Proponents already have made some alterations in the measure since it was introduced.
For example, the original version of SB 1457 sought to outlaw all abortions in cases of a genetic abnormality.
That bothered Rep. Regina Cobb, R-Kingman. So she added language to allow a pregnancy to be terminated in cases where there was a “severe fetal abnormality,’’ defined as “a life-threatening physical condition that, in reasonable medical judgment, regardless of the provision of life-saving medical treatment, is incompatible with life.’’
Cobb said this would ensure that women are not required to carry a fetus to term that would not long survive outside the womb. At the same time, she said, it would honor the intent of the bill which is to bar abortions simply because a fetus was diagnosed with something like Down’s syndrome.
Pace, however, said that change only made things worse.
“I have tried to find what is ‘reasonable medical judgment’ and what is ‘incompatible with life,’ ‘’ he said, including how quickly a newborn would have to die in order for the defect to be considered “incompatible with life.’’
Worse yet, he said, that verbiage would mean that the fate of a doctor who went ahead with an abortion would be left to the courts.
Consider, Pace said, “reasonable medical judgment.’’
“A jury would have to determine what medical judgment was ‘reasonable,’ ‘’ he said. “We are asking a panel of lay individuals to determine medical judgments, to play the ‘board of medicine.’ ‘’
Pace said he would have been more comfortable had the legislation said doctors can’t be held liable if they exercised “good faith clinical judgment.’’ That, he said, would mean the jury would have to decide whether the doctor acted in “good faith’’ rather than second-guessing his actual decision.
In refusing to vote for SB 1457 because of concerns about genetic abortions, Pace quashed other provisions sought by abortion foes.
One would have made it illegal for women to receive the pills for medication abortions in the mail or by courier. Instead, they would have to go to a doctor to get the pills where they would presumably first be examined.
Cathi Herrod, president of the anti-abortion Center for Arizona Policy, said that medication abortions, often used in the first 10 weeks of pregnancy, can have more complications than a surgical procedure. She said it is wrong to simply allow a woman to take the pills, usually two different medications taken days apart, without some medical supervision.
SB 1457 also had something else that concerned foes.
It included language that said Arizobna laws grant 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 limits of the U.S. Constitution and rulings of the U.S. Supreme Court.
But Barto said concerns about that are overblown.
“It does not confer personhood,’’ she said.
Barto also said that the legislation was not designed to provoke a challenge to the historic 1973 U.S. Supreme Court ruling in Roe v. Wade which said women have an absolute right to terminate a pregnancy before a fetus becomes viable.
“We don’t need that,’’ she said. “This policy is law in four other states.’’
Wednesday’s Senate vote is the second defeat in as many days for abortion foes.
On Tuesday, Senate President Karen Fann, R-Prescott, said she would not allow a vote on a more far-reaching measure which would have outlawed all abortions conducted after there is a fetal heartbeat, something that can occur as early as five weeks into a pregnancy. Fann said that Sen. Wendy Rogers, R-Flagstaff, did not have the bill checked for constitutionality and that it did not have the support of the majority of the Senate.