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Arizona laws that restrict how and when women can terminate their pregnancy infringe on the fundamental right to abortion voters enshrined in the state Constitution last year, attorneys for two local abortion providers argued in court on Thursday. 

Over the course of a six-hour evidentiary hearing, the legal team for the doctors called on Maricopa County Superior Court Judge Gregory Como to at least temporarily block multiple statutes that regulate abortion while litigation continues. The laws ban the mailing and prescription of abortion pills via telehealth; prohibit abortions solely because of a fetal genetic abnormality; and require an ultrasound, the recitation of state-mandated information and a 24-hour delay before an abortion can be performed. 

Dr. Paul Isaacson, Dr. William Richardson and the Arizona Medical Association, represented by attorneys from the Arizona branch of the American Civil Liberties Union and the Center for Reproductive Rights, contend that those laws fall afoul of an abortion rights amendment that 62% of voters backed in 2024. 

Proposition 139, also called the Arizona Abortion Access Act, made abortion a constitutional right and explicitly forbids the enforcement or adoption of laws that interfere with that right before fetal viability. The only exceptions are laws that don’t undermine a woman’s “autonomous decision making” and are intended to improve or maintain her health in ways that are consistent with clinical standards and evidence based medicine. 

In the second of three hearings held on Thursday, reproductive rights attorneys emphasized that criteria to prove that the laws restricting abortion care in Arizona violate the new constitutional protection. 

Dr. Katherine Wenstrom, a professor of obstetrics and gynecology at Brown University who also provides abortions and specializes in high risk pregnancies, testified that Arizona’s ban on abortions because of fetal genetic abnormalities directly undermines a woman’s autonomy. Referred to as the “Reason Ban Scheme,” the law has frequently been criticized by local abortion providers who say it operates as a gag rule that prevents them from freely counseling their patients for fear of being forced to deny them care. Doctors who knowingly violate the law could face between two and eight years in prison. 

Wenstrom said that threat necessarily puts the doctor and patient at odds, and strips women of their decision-making power at an incredibly vulnerable time. 

“Especially in these situations, the patient needs to feel that they’re in control of what happens to their own body,” she said. “The ‘Reason Ban’ makes it clear that you can only be in control of your own body if you sneak in, disobey the law, don’t tell anyone why you’re having the termination and deprive yourself of all the added support that you would get if you were allowed to discuss it.” 

ACLU attorney Rebecca Chan zeroed in on that assertion, questioning Wenstrom whether, in her professional opinion, the law complies with the strict criteria baked into the state’s abortion rights amendment. If opponents of the laws can persuade the courts that they don’t comply with that criteria, the laws would effectively be rendered unconstitutional and unenforceable. 

“Does prohibiting doctors from providing abortions if they know the patient’s reason advance or maintain the health of the patient seeking abortion care?” Chan asked. “Is it consistent with accepted clinical standards of practice? Is it evidence-based medicine?” 

Each time, Wenstrom replied in the negative. Wenstrom also denounced the laws requiring ultrasounds and the recitation of state-mandated information 24 hours before performing an abortion as onerous and harmful. She noted that ultrasounds aren’t always necessary, especially if a woman’s estimate of her last menstrual cycle places her pregnancy in the first trimester, when less precision is required for doctors to perform an abortion. Determining where a pregnancy is in the second trimester is more urgent, as that’s when fetal viability comes into play. 

Wenstrom was particularly critical of the state-mandated information doctors are forced to recite to patients. The information covers alternatives like adoptions, the father’s financial responsibility and even an explanation of the fetus’ current development stage, which Wenstrom said could cause emotional distress.  

Anti-abortion attorneys attempt to extend fetal viability

On the other side of the debate are top GOP leaders in the state legislature, who intervened to defend the laws when Arizona’s Democratic attorney general, Kris Mayes, declined to. 

Senate President Warren Petersen and House Speaker Montenegro are hoping to convince the courts that the laws don’t violate the new constitutional standard and can remain in place. To do that, their legal team has sought over the past two days to characterize the laws as nothing more than safeguards, and have worked to cast doubt on assertions from reproductive rights attorneys that the statutes unduly burden both women and doctors. 

Justin Smith, an attorney for Petersen and Montenegro, pressed Wenstrom on her claim that mandatory ultrasounds don’t take into consideration the differences between patients. Smith asked Wenstrom if she performed ultrasounds on her patients. Wenstrom said that she had, and that doing so is in line with recommendations from the American College of Obstetricians and Gynecologists. 

“So, then, that doesn’t interfere with the woman’s autonomy, right?” Smith asked. “It’s for her health?” 

Wenstrom disagreed, saying that the ultrasounds aren’t so much for the mother’s health as they are to collect basic data about the pregnancy. She added that if a patient perceived an ultrasound as violating their autonomy, they would simply decline it — something that some of her patients have done. But Smith dismissed those patients as the “exception and not the rule,” in an apparent bid to prove that ultrasounds don’t violate a woman’s autonomous decision-making ability. 

Smith also questioned Wenstrom about fetal viability and post-viability abortions. While fetal viability has generally been regarded as being around 22 to 23 weeks, determining when a fetus can survive outside the womb and an abortion shouldn’t be performed isn’t an exact science, and abortion foes have long tried to push back that deadline. 

Smith noted that, in July, a boy born at 21 weeks in Iowa became the world’s most premature baby, and posited that the same could happen in other cases. 

“Now we have proof that a baby at 21 weeks can be viable right?” he asked. 

But Wenstrom was skeptical, pointing out that it was one isolated case among the country’s 4 million annual births. Smith asked Wenstrom whether she considers aborting a fetus at viability unethical, and pressed her over whether she had ever performed an abortion of a viable fetus. 

That prompted an interjection from Como, who questioned the relevance to the debate. Reproductive rights attorneys are focusing their challenge on the enforceability of the laws on pre-viability abortions, so questions about how they apply to viable fetuses aren’t currently at issue. 

Smith argued that establishing viability is imperative, because Prop. 139 leaves that up to doctors to determine. He pointed out that, while Wenstrom said viability could start as soon as 21 weeks, Isaacson on Wednesday testified that he had performed abortions as late as 23 weeks. 

“Under the constitutional standard, viability is determined (on) a case-by-case basis,” Smith said. “The relevance here goes to when the ‘Reason Ban’ would actually be taking effect.” 

If Wenstrom’s standard had been upheld, Isaacson’s Wednesday testimony could have been thrown into question, and statements his attorneys are relying on as evidence would have been nullified. But Como wasn’t convinced by Smith’s line of reasoning and directed him to move on. 

Abortion foes make a (second) bid to shut down the lawsuit

After reproductive rights attorneys wrapped up their portion of the evidentiary hearing, opening up the floor for their counterparts to build their own case, Smith made a motion to end the litigation process and for Como to issue a ruling. The motion alleged that reproductive rights attorneys hadn’t sufficiently proven that the challenged laws are unconstitutional and, because of that, Como should rule in favor of Petersen and Montenegro. 

Smith argued that, because the laws covered actions that are sometimes appropriate and in line with the criteria of Prop. 139 — an ultrasound isn’t always necessary but it could be helpful, for example — they shouldn’t be thrown out.

“The Plaintiffs failed in their case to prove that there are no set of circumstances for each one of these provisions in which the law would not have a constitutional application,” he said.    

Caroline Sacerdote, an attorney for the Center for Reproductive Rights, objected to that characterization and said that, in fact, the legal team for Petersen and Montenegro have so far failed to prove that the laws being challenged comply with the strict criteria in Prop. 139. 

“We maintain that the challenged laws interfere with the fundamental right to abortion prior to viability as a matter of law,” she said. “Intervenor-defendants have certainly not met their burden of showing that interference with the fundamental right is justified under the strict scrutiny required by the amendment.” 

Ultimately, because abortion is a constitutional right, the legal burden of proof falls on Petersen and Montenegro. In a ruling rejecting an early attempt by the duo to quash the lawsuit, Como noted that any restrictions on abortion access are “presumptively invalid” because of Prop. 139, and it’s the responsibility of the backers of those laws to prove that they are constitutional. On Thursday, Como reiterated that view and denied Smith’s motion to force a final determination. 

A third hearing has been scheduled for Friday, and Como said he hopes to issue a ruling soon after.

Anti-abortion doctor advocates for the preservation of restrictive laws

Attorneys for Petersen and Montenegro questioned one witness on Thursday to support their assertions that the challenged laws improve the provision of abortions in Arizona: an OB-GYN who has never performed a single abortion. 

Dr. Steven Garth Nelson, who runs a women’s health clinic in Phoenix, admitted that he’s never performed an abortion, and refuses to refer patients out to abortion clinics for elective procedures. But he defended his testimony as an expert on the subject by pointing out that he has observed multiple abortions, studied the procedure and frequently performs dilation and curettage procedures for women suffering miscarriages. Commonly called a D&C, the procedure is used to remove fetal tissue from a womb and is also used in abortion care. 

Reproductive rights attorneys objected to Nelson’s testimony, arguing that he’s unable to understand the difficulties posed by the challenged laws that abortion providers endure and are forced to watch their patients struggle with every day. But Como allowed his testimony, reasoning that being educated on abortion care was sufficient. 

Nelson spoke at length about his support of the challenged laws, saying that ultrasounds are critical for ensuring patient health and criticizing the interest in conducting initial abortion consultations over video or phone call. It would be extremely difficult to determine if a patient is being coerced to obtain an abortion over the phone without being able to observe their body language, he said. 

In a bizarre moment when asked whether identifying changes in tone during patient consultations is a regular part of his responsibilities as a physician, he became visibly emotional. 

“Medicine is an art,” Nelson said, beginning to cry. “It’s an intimate human-to-human art, and when we take away or begin to strip away the aspects of that interaction that detract(s) from that optimal care, I think we’re not fulfilling our obligation to provide appropriate care.” 

Despite never having performed one, Nelson was asked by attorney Emily Gould to describe a dilation and evacuation procedure, which is used during second trimester abortions. Nelson provided a prolonged and graphic explanation, describing the crushing of fetal bones. Following objections from reproductive rights attorneys, Como requested that Gould clarify how discussing the procedure relates to the challenged laws. 

Gould tied the discussion of dilation and evacuation procedures to the ultrasound statute. 

“We need an ultrasound to properly plan for and prepare for this procedure,” she said. 

But reproductive rights attorneys rebutted that the lawsuit doesn’t seek to challenge the ability of doctors to perform dilation and evacuation procedures. Instead, it’s focused on the pre-viability enforcement of the abortion restrictions, which has to do with the first trimester, and not the second. During the first trimester, medication abortions are most common. 

In Arizona in 2023, the last year that data is available, 95% of abortions were performed in the first trimester, and more than half of those were medication abortions. 

Nelson framed the laws as “guardrails” intended to keep women safe amid negligent doctors. But Hayleigh Crawford, a deputy solicitor general in Mayes’s office, questioned whether he was at all involved in drafting the laws or debating their merits with lawmakers. He replied that he had not been. 

“So, you don’t know whether the Arizona Legislature enacted or adopted these laws for the limited purpose of improving or maintaining the health of an individual seeking abortion care consistent with acceptable standards of practice and evidence-based medicine?” she concluded.

Although he allowed Nelson to testify, Como appeared skeptical about his testimony, pushing back on assertions that the U.S. Food and Drug Administration’s approval of mifepristone, the most widely used abortion pill, should be questioned. Nelson was particularly critical of the agency’s collection of adverse events involving the pill, calling it insufficient. 

Como pressed Nelson on his mistrust of the FDA, asking what other agencies or resources he relies on to make decisions about which medications he prescribes. Nelson, who testified that he prescribes abortion pills to help women dealing with miscarriages, admitted that he still relies on the FDA’s determinations despite his qualms. 

The FDA regularly collects information on potential issues with all of the medication it approves. Mifepristone has been the subject of more than two decades of clinical trials and research and has been determined to be safer than over-the-counter pain medications like Tylenol. But opponents of abortions have long sought to cast aspersions on the FDA’s approval process to justify state-level restrictions on the procedure. 

Como also questioned Nelson on the types of medical procedures he performs that have comparable risk levels to abortions, and whether any of them were similarly subject to a state-imposed waiting period or other regulations. 

“Do any of the procedures that you just described — c-sections, removal of the fallopian tubes, forcep deliveries, hysterectomies — does the state dictate what you must include in your informed consent for any of those procedures?” Como asked. 

Nelson replied that, while the federal government requires a 30-day waiting period before a hysterectomy, no such state-level mandates exist for any of the procedures he regularly performs.  

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