Attorney: 20-week abortion ban should stand

2012-10-05T05:00:00Z Attorney: 20-week abortion ban should standHOWARD FISCHER Capitol Media Services Arizona Daily Sun
October 05, 2012 5:00 am  • 

PHOENIX -- A federal court should uphold Arizona's ban on abortions at 20 weeks of pregnancy because there is no constitutional right to abortions on demand, even before viability of the fetus, the chief defender of the law is arguing.

In legal filings with the 9th U.S. Circuit Court of Appeals, Maricopa County Attorney Bill Montgomery disputed the contention by foes of the law that states cannot impose any restrictions on the ability of a woman to terminate a pregnancy before the point a fetus can live outside the womb.

Instead, he argued, women have a protection only against "undue interference" by the state. And Montgomery said even a law that stops virtually all abortions at 20 weeks -- weeks before anyone contends a fetus is viable -- does not cross that line.

Hanging in the balance is whether abortions at and beyond 20 weeks will become impossible for a woman to obtain in Arizona unless it is necessary to avert her death or in cases of "serious risk of substantial and irreversible impairment of a major bodily function."

Lawmakers approved the ban earlier this year. And a trial judge upheld it as legal.

But the appellate judges barred the state from enforcing it until they got a closer look, scheduling a hearing next month in San Francisco.

Central to that fight are the constitutional rights of pregnant women.

Janet Creps, an attorney for the Center for Reproductive Rights, said those rights were spelled out in the landmark 1973 case of Roe v. Wade where the U.S. Supreme Court that legalized abortion.

The high court tinkered with that a bit in a 1992 ruling upholding a Pennsylvania law which imposes a 24-hour waiting period before an abortion can be performed as well as a requirement for a woman to be given certain information ahead of the procedure.

But Creps pointed out that the majority in that later ruling said their decision has "no bearing on the validity of (Roe's) central holding, that viability marks the earliest point at which the state's interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions."

Montgomery conceded that's what the high court said. And he insisted he's not urging the appellate court to ignore the two precedent-setting rulings.

But he is trying to craft a way around them, saying, in essence, that the situation is different now.

"(The earlier rulings) continued to assume the comparative safety of abortion over childbirth," Montgomery wrote. "And they were not informed of current medical knowledge that the unborn child feels pain," an argument presented to lawmakers by some medical professionals and disputed by others.

If that argument does not work, Montgomery has another one.

He said that the legislation does not run afoul of the Supreme Court rulings because it does not ban all pre-viability abortions. Instead, he argued, it simply regulates it, citing the exception for maternal life and health.

Anyway, Montgomery said, women still can have abortions -- if they act before the 20th week.

"The act does not prevent abortions," Montgomery wrote. "Instead, it is a reasonable regulation given the balance of interests that the Arizona Legislature has considered ... as to women's health and fetal life."

Creps, however, told the judges they cannot uphold the law based on a narrow exception, one that would not apply for most women.

"For all these women, the act operates as an absolute and unconstitutional ban," she wrote. And prior to the viability of a fetus, "it is the woman -- not Arizona -- who decides whether and when she will terminate her pregnancy."

Montgomery is also arguing that there is now evidence that, at least at 20 weeks or beyond, the complications from an abortion are far riskier than those of proceeding to carry the child to full term.

The challengers dispute that contention. But Montgomery said it's really legally irrelevant to who wins the lawsuit.

"Just because you have two competing scientists, that doesn't mean that a state cannot constitutionally assert an interest and resolve the discrepancy between scientists in favor of the health of the mother and the life of the child," he said.

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