Arizona’s new ban on most abortions beyond 20 weeks of pregnancy crosses a clear line on what U.S. Supreme Court rulings permit, an abortion-rights advocate told a federal judge Wednesday, while a prosecutor argued the ban is justified to protect women and fetuses.
U.S. District Judge James Teilborg did not rule immediately after a hearing on abortion-rights groups’ request to block enforcement of the ban and on Maricopa County Attorney Bill Montgomery’s request to dismiss the groups’ challenge.
The ban, set to take effect Aug. 2, is similar but not identical to those enacted by other states. It would prohibit abortions starting at 20 weeks of pregnancy except in medical emergencies. That’s a change from the current ban at viability, which is the ability to survive outside the womb and which generally is considered to be about 24 weeks. A normal pregnancy lasts about 40 weeks.
A second Arizona anti-abortion law enacted earlier this year and scheduled to be implemented Aug. 2 also faces a court challenge. That law would bar public funding for non-abortion health care provided by abortion doctors and clinics.
Both anti-abortion laws are among many approved by Arizona’s Republican-led Legislature. Those include restrictions on clinic operations, mandates for specific disclosures and a prohibition on a type of late-term abortion.
As both sides argued in court Wednesday that they had the health of women in mind, Center for Reproductive Rights attorney Janet Crepps repeatedly told Teilborg the 20-week ban would violate U.S. Supreme Court rulings.
Under U.S. Supreme Court decisions starting with the landmark 1973 Roe vs. Wade ruling that legalized abortion, states can only regulate how abortions are performed — not ban them — before a fetus is viable, she said. And any regulations “cannot strike at the heart of (that) right,” she said.
Montgomery defended the ban, saying that advances in medicine mean that not implementing the 20-week ban would “condemn today the infant that might be saved tomorrow.”
“The Legislature made a choice” that concerns about maternal health and the life growing in the mother were significant enough to warrant a 20-week ban, the prosecutor said. “Arizona has abiding interest in the health and welfare of all of its citizens.”
Montgomery also argued there’s little to no difference between a regulation and a prohibition with exceptions. Crepps said they aren’t the same.
“I understand that the defendants are trying to blur that line, but the Supreme Court has not blurred that line,” she said.
Teilborg noted that in 1973, viability was generally considered to be 28 weeks. Today, he said, fetuses can survive earlier.
The judge questioned Crepps whether a 20-week ban is on “the border of viability” and whether the state’s interests in protecting fetuses accordingly should be given more weight.
Crepps responded that physicians, not legislators, determine viability and that the 20-week violates “clear law” that there cannot be a ban before viability.
The judge didn’t say how he’d rule, although he did at one point say affidavits submitted by the physicians lacked any indication 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?”
Montgomery argued the challenge should be dismissed because the law hasn’t taken effect and the court can’t yet consider any specifics involving a particular woman’s health. “The court has been presented half a sandwich,” he said.
While North Carolina has long had a 20-week ban, Nebraska in 2010 was the first state to recently enact one. Five more states followed in 2010: Alabama, Idaho, Indiana, Kansas and Oklahoma.
Along with Arizona, Georgia and Louisiana approved 20-week bans this year, though Georgia’s doesn’t take effect until 2013.
The Center for Reproductive Rights said none of the 20-week bans have so far been blocked by courts.
Other provisions in the Arizona law containing the 20-week ban include a requirement that the state maintain a website providing information on alternatives to abortion, medical risks and images of fetuses at various stages of development.