November 6, 2012 — A three-judge panel of the 9th U.S. Circuit Court of Appeals on Monday cast doubt on the constitutionality of an Arizona law (HB 2036) that bans abortion after 20 weeks of pregnancy except in medical emergencies, the AP/Washington Times reports (Elias, AP/Washington Times, 11/5).
The law bans abortion beginning at 20 weeks after a woman's last menstrual period; if enacted, it would set the earliest limit for abortion in the country. The suit -- filed in U.S. District Court in Phoenix by three Arizona physicians, the Center for Reproductive Rights and the American Civil Liberties Union -- argues that the law unconstitutionally limits women's access to abortions prior to a fetus' viability (Women's Health Policy Report, 8/2).
Judge Andrew Kleinfeld repeatedly raised concern that the law would prevent women from obtaining abortions in cases in which fetal abnormalities cannot be detected until about 20 weeks (Cohen, Reuters, 11/5).
The judges also questioned Maricopa County Attorney Bill Montgomery's claim that the state was within its authority to limit the procedure after 20 weeks because "new medical evidence" shows that the risks of abortion for the woman increase after that time and that fetuses can feel pain around that point in development.
Given that the Supreme Court has said that the risks to a woman before the fetus is viable do not trump her right to obtain an abortion, there appears to be no choice but to strike down the law, Kleinfeld said.
Judge Marsha Berzon said the Supreme Court "perfectly understood" that abortions later in pregnancy pose a greater risk to the woman. "Ordinarily, one gives people the right to make medical decisions, including the risk to themselves, as long as they're told what the risks are," she said.
Judge Mary Schroeder noted that the high court has already addressed the issue of the risks to the woman and upheld several laws to regulate abortion, including requirements that women be informed of risks (Fischer, Capitol Media Services/Arizona Daily Star, 11/6).
The judges gave no indication of when they would rule. Although the law was slated to take effect on Aug. 2, the court has blocked its implementation until it issues a ruling (AP/Washington Times, 11/5).
Ariz. 20-Week Ban is Unconstitutional, Opinion Piece Argues
In a Slate opinion piece, Emily Bazelon writes, "When in a pregnancy can a state ban abortion? For years, the answer has been clear: after viability."
Bazelon outlines reasons why the court will "probably" strike down the Arizona law, including that it "defies the spirit of Roe v. Wade and the letter of Planned Parenthood v. Casey, the Supreme Court's 1992 affirmation of the core of Roe, which allows the state to regulate abortion before viability but to bar it only after that threshold has passed." Nonetheless, the case is a "reminder ... of the impact of the wave of state restrictions on abortion that have passed since Republican electoral gains in 2010, and of how the ground will shift under women's feet if the courts let these [laws stand]" (Bazelon, Slate, 11/5).