Maricopa County Bill Montgomery will ask federal appellate judges this morning to let the state start enforcing one of its new abortion restrictions.
The legislation approved earlier this year says no abortion can be performed after the 19th week of pregnancy unless necessary to prevent a woman's death or -- quote -- substantial and irreversible impairment of a major bodily function. The Center for Reproductive Rights sued. Attorney Janet Creps says the law runs afoul of Supreme Court rulings going all the way back to the landmark 1973 case of Roe v. Wade.
"The thing that makes this law unconstitutional is that it flat-out prohibits some women from getting abortions prior to viability," Creps said. "And that's the line that the Supreme Court has drawn. It says to the states, you can regulate, but you can't prohibit."
That point of viability with current medical science is somewhere between 22 and 24 weeks. But Creps gained no traction when she made that argument to a trial judge Phoenix. So she secured a stay from the 9th Circuit. Now the burden is on Montgomery to convince the three-judge panel here the measure is constitutional. Much of the legal fight centers on whether the legislation is regulation, which is permitted, or a ban. Montgomery says it's the former.
"We don't have a ban," Montgomery said, "Because if there is a medical emergency then a woman does have access to abortion services. So I would say that we're regulating the abortion procedure after 20 weeks to where, if there is a medical emergency required, then a woman certainly will have access to that."
Creps says that's torturing the definition of "regulation.'' She says the fact that some women might be able to get an abortion legally at 20 weeks and beyond does not alter the fact that others who are not in an emergency situation will not.
"When you make something illegal, subject to criminal penalties, such that a woman who wants an abortion before viability but after 20 weeks can't get it because it's illegal for her physician to perform that procedure, that's a ban," she said.
Montgomery points to a 2007 Supreme Court ruling which banned partial birth abortions, whether pre- or post-viability. He says that shows the high court is willing to allow states to assert they have legitimate interests that must be weighed against the right of a woman to terminate her pregnancy.
"We're looking at regulations that take into account the health and welfare of the mother, the state's interest in potential life, further illuminated by the latest in neonatal science that now makes us aware of the ability of an unborn child to feel pain," he said.
But Creps says that ruling simply banned one TYPE of abortion procedure. She says it does not allow a state to ban ALL procedures used prior to viability. That raises the possibility this case will ultimately become the chance for high court to revisit Roe v. Wade. Montgomery says he's not challenging that decision outright. He says, though, this case could give the high court a chance to consider, in his words, how anachronistic Roe has become in light of advances in medical and neonatal science. But Creps says , she does not envision the court using it to overturn nearly 40 years of rulings. She says that, if nothing else, the justices give strong consideration to the principle that courts abide by prior rulings.
"I think the justices are going to be very reluctant to go back and say, 'No, we're now going to completely undermine that rule.' I think and hope that they would see that that would really undermine the credibility of the court," she said.
Given the issues involved, whatever the 9th Circuit rules will not be the last word, with the case ultimately going to the Supreme Court.