Judge Weighs Challenges to Ariz. 20-Week Abortion Ban

July 26, 2012 —U.S. District Judge James Teilborg on Wednesday heard arguments in a lawsuit challenging a new Arizona law (HB 2036) that bans abortion beginning at 20 weeks after a woman's last menstrual period, the AP/Arizona Republic reports (AP/Arizona Republic, 7/25).

The suit was filed by three Arizona physicians, the Center for Reproductive Rights and the American Civil Liberties Union in U.S. District Court in Phoenix. It seeks a preliminary injunction or, if there is not enough time, a temporary restraining order against the law.

The law, which is set to take effect on Aug. 2, would create the earliest limit for abortion in the country. It permits exceptions only when continuing a pregnancy would result in the woman's death or the "irreversible impairment of a major bodily function" (Women's Health Policy Report, 7/13). Physicians who "knowingly perform, induce or attempt to perform or induce" an abortion in violation of the law would face a misdemeanor charge and up to six months in jail (Crawford/Deprez, Bloomberg, 7/26).

Wednesday's Hearing

During Wednesday's hearing, CRR attorney Janet Crepps argued that the U.S. Supreme Court has established that states can regulate only how abortions prior to viability are performed, not ban them. Abortion regulations "cannot strike at the heart of" the constitutional right to abortion, she said.

Teilborg asked Crepps whether a 20-week ban is on the "border of viability" and if the state's interest in protecting the life of a fetus should be given more consideration. Crepps responded that it is the responsibility of physicians, not lawmakers, to determine viability.

Teilborg at one point noted that court affidavits submitted by physicians showed a lack of concern for fetuses. "Doesn't that underscore the legitimacy of the state's regulatory action now being challenged out of concern for the unborn child?" he asked.

Meanwhile, Maricopa County Attorney Bill Montgomery argued, "The Legislature made a choice" based on maternal and fetal health concerns to implement the 20-week ban, adding, "Arizona has abiding interest in the health and welfare of all its citizens" (AP/Arizona Republic, 7/25). According to Montgomery, the Legislature had evidence that fetuses can feel pain around 20 weeks of development and that abortion is more risky at that point (Fischer, Arizona Daily Star, 7/26).

He also argued that the legal challenge to the law is premature and should be dismissed because the court cannot yet determine the law's specific effects on a specific woman's health (AP/Arizona Republic, 7/25). After the hearing, Montgomery noted that upholding the law could force the Supreme Court to review its prior rulings on when states can ban abortion. He added that the lawsuit could potentially challenge, and possibly overturn, Roe v. Wade. "It certainly does provide an avenue for the court to fully address just how viable is a viability standard," he said (Arizona Daily Star, 7/26).

New York Times Editorial Implores Court to Make 'Right Call' and Block Law

Teilborg should "make the right call" and block the abortion ban, which "denies a fundamental right to all Arizona women and puts in danger those who might want to carry a wanted but complicated pregnancy to term," a New York Times editorial states. The law could also "leave women feeling rushed to have abortions" before 20 weeks; "if they miss that window, they may be forced to wait out a dangerous pregnancy or to deliver a child who will quickly die," the editorial warns (New York Times, 7/25).