Howard Fischer PHOENIX — Arizonans' right to abortion could turn on the question of whether anyone still has legal standing to argue the procedure should be all but outlawed as it was in territorial days.
In 1971, when the state's abortion ban was first challenged by Planned Parenthood, a trial judge in Pima County appointed a"guardian ad litem'' empowered to represent the legal interests of the fetus of a woman identified only as"Jane Roe'' who was a plaintiff in the case and wanted to terminate her pregnancy. The judge said the guardian also could represent other fetuses"similarly situated'' at the time.
Republican Mark Brnovich, Arizona's attorney general at the time, then asked a judge here to reinstate the territorial-era ban, whose only exception is to save the life of the mother. That judge also agreed to allow abortion opponent Dr. Eric Hazelrigg, medical director of Choices Pregnancy Center, to serve in the guardian position.
2022 actionsThe Republican-controlled Legislature voted last year, before Roe was overturned, to enact the law outlawing abortions up to 15 weeks. For the moment, that leaves only Hazelrigg seeking to overturn the appellate court ruling and go back to the territorial-era law, which is why Mayes is asking the justices to dismiss him from the case.
"Now, there is no plaintiff seeking an abortion, and therefore no individual fetus or 'similarly situated' fetuses for petitioner to represent,'' the attorneys for Mayes are telling the justices."How can there be a guardian when there are no wards?''"Does his appointment cover all fetuses that exist in Arizona right now?'' the state's lawyers ask.