AZ Fed District Judge Blocks Equal Protection of Unborn Children

Obama Appointee to the Federal bench Douglas Rayes strikes down Arizona law recognizing equal status of preborn child.
Obama Appointee to the Federal Bench Douglas Rayes

Judge Douglas Rayes, an Obama appointee to the Federal District Court in Phoenix, struck down a law passed in 2021 that required equal protection for all human at every stage of development.

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.

Ariz. Rev. Stat. § 1-219

In a 17 page opinion, Judge Rayes sided with the Plaintiff’s attorneys who represent the abortion industry and radical anti-life organizations.

Plaintiffs in the case include the Center for Reproductive Rights, the American Civil Liberties Union (ACLU) of Arizona, the Arizona Medical Association, the Arizona National Council of Jewish Women, Arizona NOW, and two abortion providers, Dr. Paul Isaacson and Dr. Eric Reuss.

The Opinion

Judge Rayes stated that “[t]o the extent Plaintiffs are forced to hypothesize about ways in which their conduct might violate statutes if those statutes are interpreted and construed to acknowledge the equal rights of the unborn, it is precisely because the [Interpretation Policy] puts them at the mercy of the State’s discretion, in violation of their due process rights.

The court considered the request for an emergency injunction appropriate due to the “unconstitutional vagueness” of the law and the judge’s opinion that plaintiffs had a strong likelihood of prevailing.

The fact that the Plaintiffs are all members of the abortion industry or members of activist pro-abortion organizations, is a clear indication that far from being vague, the law is crystal clear in holding that the intentional killing of unborn children would violate Arizona’s law because the intentional taking of an innocent child’s life is the textbook definition of the deprivation of the most fundamental “right(s), privileges and immunities available to other persons.”

In the Dobbs decision, the opinion of the Supreme Court begins with a direct reference to the matter considered by the Arizona Court, that is, to Personhood.

Abortion presents a profound moral issue on which Americans hold sharply conflicting views. Some believe fervently that a human person comes into being at conception and that abortion ends an innocent life.

Dobbs v Jackson, Opinion of the Court pg. 1

The Supreme Court in Dobbs actually deals with the argument made by the pro-abortion plaintiffs and rejects them directly.

Our opinion is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth. The dissent, by contrast, would impose on the people a particular theory about when the rights of personhood begin. According to the dissent, the Constitution requires the States to regard a fetus as lacking even the most basic human right—to live—at least until an arbitrary point in a pregnancy has passed. Nothing in the Constitution or our Nation’s legal traditions authorizes the Court to adopt that “‘theory of life.’” 

Dobbs v. Jackson, Opinion of the Court pg. 38-39

It certainly appears that Judge Rayes did not get the Dobbs memo, or understands that after Dobbs it is not up to the federal judiciary to make the decision of what theory of life should govern a state’s laws.

Instead of openly defying the Dobbs decision, Judge Rayes attempts to use a very flimsy legal excuse of “vagueness” to provide cover for the abortion industry. The argument is one proposed by the radically pro-abortion Center for Reproductive Rights and it is that the personhood law is unconstitutionally vague because it would force abortionists to “hypothesize about ways in which their conduct might violate statutes.” Judge Rayes writes that “when the punitive and regulatory weight of the entire Arizona code is involved, plaintiffs should not have to guess at whether their conduct is on the right or the wrong side of the law.”

Of course, there is little hypothesizing or guesswork necessary in understanding that the direct and intentional killing of a pre-born is a clear violation of a regulatory framework that “acknowledge(s), 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.”

Judge Rayes’ disingenuous vagueness claims are absolutely destroyed when one compares them with a typical view of personhood as understood by the common law before Roe V. Wade:

“If the common law protects the rights of the unborn child and if every intendment in the law is favorable to him, the inference is inevitable that such unborn child is a person and possesses the rights that inhere in a person even though he is incapable himself to assert them.”

Williams v. Marion Rapid Transit Co., 152 Ohio St. 114 1949

Clearly, Judge Rayes believes that he has the power to decide what the law is, instead of the people of Arizona who made it clear when they passed the 2021 law that included the “personhood” language in question.

Will Arizona Appeal?

It is not clear whether Attorney General Brnovich’s office will appeal the decision.

“Today’s ruling was based on an interpretation of Arizona law that our office did not agree with, and we are carefully considering our next steps,” Brittni Thomason, spokesperson for the Attorney General’s Office, said Monday. “Our focus remains on bringing clarity to the law for Arizonans.”

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