Ariz. Appeals Court Rules That 2009 Abortion Restrictions Do Not Cause Undue Burden

August 12, 2011 — The Arizona Court of Appeals on Thursday ruled that key parts of a 2009 state law restricting abortion services are constitutional and do not place an undue burden on women, the AP/San Diego Union-Tribune reports (Myers, AP/San Diego Union-Tribune, 8/11).

The three-judge panel considered whether to overturn a lower-court ruling that halted enactment of parts of the law. Maricopa County Superior Court Judge Donald Daughton in 2009 issued a preliminary injunction against a provision in the law that banned anyone except physicians from performing surgical abortions. He also halted provisions that required a physician to meet in person with the patient at least 24 hours before the procedure, required notarized parental consent for minors, and allowed pharmacists and other medical professionals to refuse to provide abortion or contraceptive services (Women's Health Policy Report, 6/16).

On Thursday, the panel said state lawmakers have broad authority to impose restrictions on abortion, the Arizona Daily Star reports. The preliminary injunction will remain in place to allow Planned Parenthood of Arizona to decide whether to appeal and for the Arizona Supreme Court to decide whether to review the case, according to the Daily Star.

The appeals court ruled that requiring a licensed physician to perform abortions does not impose an undue burden on women's constitutional right to abortion. The fact that a law may place some burden on women is not enough for it to be struck down, the court said. Judge Peter Swann, who wrote the unanimous opinion, said it is not legally relevant that nurse practitioners are specifically trained to provide abortion procedures, are available in rural areas without doctors and have a comparable safety record to doctors.

In addition, the judges disagreed with Daughton's ruling that a telephone consultation prior to obtaining abortion care is sufficient "informed consent." Swann wrote, "Courts have long recognized that eye-to-eye, face-to-face interaction is superior to videoconferencing," adding that the law "does not practically deny a large portion of affected women their right to choose an abortion." PPAZ did not provide evidence that it could not provide enough doctors to meet demand (Fischer, Arizona Daily Star, 8/12).

PPAZ Reaction

Bryan Howard, president of PPAZ, said, "If the law takes effect in its entirety, it will put women in Arizona in harm's way. Period. End of story." He said the combination of allowing only physicians to perform surgical abortions and requiring women to meet with a physician in person 24 hours before the procedure will create a hardship for many women, especially those living in rural areas.

"How that cannot be understood to be hardship and potentially dangerous is beyond me," he said, explaining that women living in the northeastern part of the state would have to drive five hours to Phoenix to meet with the abortion provider and stay the evening before the procedure.

Howard said PPAZ is considering an appeal of the decision, which could delay enactment for more than one year. If an appeal is not submitted, the provisions could take effect as early as next month (AP/San Diego Union-Tribune, 8/11).

According to the Daily Star, the court's decision suggests that the state will uphold additional abortion restrictions PPAZ is challenging in a separate lawsuit (Arizona Daily Star, 8/12). Last month, Maricopa County Superior Court Judge Richard Gama delayed enforcement of new state laws restricting medication abortion services, allowing attorneys to prepare for an Aug. 22 hearing. The laws prohibit nurse practitioners from providing medication abortion and require physicians to perform many services, such as pelvic exams, typically performed by nurse practitioners prior to medication abortion. Planned Parenthood alleges that the laws will eliminate abortion services at some locations and limit them at others (Women's Health Policy Report, 7/7).