Federal judge OKs law curbing Arizona abortions after 20 weeks

Says it protects women's health, ensures that fetuses feel no pain
2012-07-31T00:00:00Z 2012-07-31T11:42:47Z Federal judge OKs law curbing Arizona abortions after 20 weeksHoward Fischer Capitol Media Services Arizona Daily Star
July 31, 2012 12:00 am  • 

PHOENIX - A federal judge on Monday upheld the validity of an Arizona law designed to sharply limit abortions beyond 20 weeks of pregnancy.

Judge James Teilborg acknowledged prior U.S. Supreme Court rulings have said states may not ban abortion outright before a fetus is considered viable, generally considered to be in the 22-to-24-week range.

But Teilborg said HB 2036, approved earlier this year and signed by Gov. Jan Brewer, "does not impose a substantial obstacle to previability abortions." The law only limits abortion between 20 weeks and the point of viability, with exceptions for maternal life and health, he wrote.

He ruled the new limit is justified to protect maternal health and prevent a fetus from feeling pain while being aborted.

Monday's ruling comes on a request by the Center for Reproductive Rights and the American Civil Liberties Union, representing three Arizona doctors who perform abortions, asking Teilborg to block the law from taking effect as scheduled on Thursday while its validity was litigated.

Teilborg, however, went beyond that request and concluded last week's hearing on the injunction was a trial on the merits of the law. And then he threw out the challenge entirely.

Within hours of Monday's ruling, challengers asked the 9th U.S. Circuit Court of Appeals for a last-minute injunction prior to Thursday's effective date.

But no matter what the appellate judges do, that is unlikely to be the last word: Given the conflict with earlier U.S. Supreme Court decisions and the fact several other states have similar laws, Teilborg's ruling - the first ever on this kind of law - is likely to end up before the nation's high court.

In challenging the law, foes said a 20-week cutoff, beyond which abortions would be allowed only in case of the mother's potential death or serious injury, will deny women the right to abort a deformed fetus.

But Teilborg said evidence submitted by one of the three doctors who is challenging the law "stops short of claiming that there are any conditions that could only be diagnosed after 20 weeks that could not have been found before that time." Instead, he cited a statement of a witness for defenders of the law, concluding, "It would be extremely rare to find a condition that could be diagnosed after 20 weeks that could not have been diagnosed earlier."

The judge did acknowledge "in certain unique circumstances" a diagnosis of fetal abnormalities will not occur until after 20 weeks. But he said it would be up to a woman in that situation to challenge the law - and only for herself.

But attorney Julie Rikelman of the Center for Reproductive Rights, said, "If you're a woman facing a complicated pregnancy 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," she said. "That is just a crazy way to expect people to take care of their health."

But Maricopa County Attorney Bill Montgomery, who defended the law at last week's hearing, said there is still the option of terminating a pregnancy if the mother's life or health is seriously threatened.

Teilborg said the state has a legitimate interest in prohibiting abortions beyond 20 weeks.

"There is no question that the government may use its voice and its regulatory authority to show its profound respect for the life within the woman," he wrote, quoting from a 2007 U.S. Supreme Court ruling that outlawed partial-birth abortions.

In this case, Teilborg wrote, Arizona lawmakers stated one purpose of the legislation was to prevent abortions where the fetus would feel the pain involved, saying lawmakers cited "substantial and well-documented evidence that an unborn child has the capacity to feel pain during an abortion by at least 20 weeks gestational age."

Rikelman said the judge was wrong to blindly accept the legislative conclusion when there is ample evidence to the contrary.

"It's really just a thinly veiled attempt to justify the law," she said. "The law is about restricting abortion."

Beyond the issue of fetal pain, Teilborg said the law was justified because lawmakers said they wanted "to protect the health of the pregnant woman, which resulted in part from a finding that the major complications of abortion are highest after 20 weeks of pregnancy."

But Rikelman said that flies in the face of prior rulings by the U.S. Supreme Court.

On StarNet: Read more about local, state and national political news at azstarnet.com/politics

"There is no question that the government may use its voice and its regulatory authority to show its profound respect for the life within the woman."

Judge James Teilborg

U.S. District Court

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