State Capitol News
6:28 pm
Mon July 30, 2012

Federal Judge Upholds AZ's Abortion Ban

A federal judge today upheld the legality of a new state law that outlaws virtually all abortions after 20 weeks of pregnancy.

Until now women in Arizona have been allowed to terminate a pregnancy until the point of viability, about 22-24 weeks. This new law set to take effect Thursday moves that up. Judge James Teilborg said lawmakers were entitled to do that based on arguments that it protects a woman's health, as abortions at 20 weeks are riskier than earlier ones. And he said there is evidence that a fetus at 20 weeks can feel pain. But attorney Julie Rikelman of the Center for Reproductive Rights, which challenged the law, said there is evidence to the contrary that the judge ignored.

"But we have to be clear that's not what this law is about," Rikelman said. "It's really just a thinly veiled attempt to justify the law. The law is about restricting abortion."

Teilborg acknowledged there may be certain circumstances where a woman does not know about severe fetal abnormalities until 20 weeks. But he said that's not enough to make the law illegal. Instead, he suggested a woman who finds herself in that condition might have legal standing to challenge the law -- at least as it applies to her specific situation. Maricopa County Attorney Bill Montgomery, who defended the law, said limiting the right to sue to a woman who has an immediate issue with the law is the right course.

"Given the interest that the state has in the health and welfare of the mother and the life of the child in her womb, if somebody wants to challenge this law in those circumstances, that's the proper way to do it," Montgomery said.

But Rikelman said that's no answer at all.

"If you're a woman facing a complicated pregnancy," she said, "and you're suddenly needing to make a decision very quickly for what to do for yourself and your family, the last thing you have time for is to be rushed into getting a lawyer and rushing off to court to get an emergency order from the court that allows you to do what's best for your health. That is just a crazy way to expect people to take care of their health."

Montgomery, however, said the ban already has an exception for medical emergencies.

"That emergency exception -- and it's referenced in Judge Teilborg's ruling -- can't be read so narrowly that she would be faced with a serious health risk for breaking the law," Montgomery said. "It would have to be read in such a way that if there really was a medical emergency she would be able to, in consultation with her physician in that instance, go seek an abortion."

Rikelman noted that Teilborg's decision comes despite a pair of rulings going back to the original Roe v. Wade case that have said the state cannot ban abortions before a fetus is viable.

"What the Supreme Court has said repeatedly is that whatever interest the state may have, none of them are strong enough to ban abortion before viability," Rikelman said. "The court has been very clear about that. Different members of the court have been very clear about that. And this is a law that bans abortions before viability, will ban some abortions before viability."

But Montgomery pointed to a 2007 high court ruling in a case called Gonzales where the justices upheld a law which bans partial birth abortions, no matter what stage of the pregnancy those are performed.

"As I think the judge correctly noted, Gonzales is good Supreme Court precedent, too," he said. "And in that regard I think he gave due deference to the court's most recent set of rulings in this area."

The two sides do agree on one thing: This isn't the last word, with challengers seeking immediate review by the 9th Circuit Court of Appeals.

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