States dealing with tough new pro-life legislation throughout the country are looking to Arizona, where a strict law banning abortions after 20 weeks of pregnancy could influence the future of Roe v. Wade.
The law, modeled after similar ones in other states, asserts that a baby in the womb can feel pain after 20 weeks — four weeks before the Roe limit on when government can start regulating abortion.
That argument could persuade Justice Anthony Kennedy, considered the U.S. Supreme Court’s swing vote on abortion, to change his mind on overturning Roe, said ASU Law Professor Paul Bender, who teaches constitutional law. Kennedy wrote in a 1992 decision that Roe shouldn’t be overturned.
“I think that’s one of the reasons the people who drafted this law drafted it this way,” Bender said.
The high court could also uphold the Arizona law without disposing of Roe, an approach the court has taken in previous major abortion cases, he said.
Roe held that states can restrict abortions at viability, or after the baby can survive outside the womb, which is about 24 weeks. Laws must have exceptions for pregnancies endangering a woman’s life and health. Pain that a baby may feel during an abortion at 20 weeks is legally irrelevant under current law, Bender said.
The Arizona case is before the 9th Circuit Court of Appeals, which has expedited the briefing schedule, but not set a date for oral arguments.
Judge James Teilborg of the U.S. District Court in Phoenix recently upheld the law, ruling that Arizona has “presented uncontradicted and credible evidence” to support that a baby feels pain during an abortion at that stage.
He concluded that the law does not ban abortions that occur before viability, but limits some abortions between 20 and 24 weeks.
Changing the debate
John Jakubczyk, former leader of Arizona Right to Life, said Arizona’s law will turn the legal debate toward protecting life.
“All of these things are a challenge to the logic of Roe and we’re asking the court to revisit that question,” Jakubczyk said.
Arizona’s law says no one can perform an abortion on a woman who is determined to be at least 20 weeks pregnant unless there is a medical emergency. A doctor who knowingly does so faces a misdemeanor charge and a suspension or revocation of his license.
“The purpose of this bill is to establish that women have a substantially increased risk of harmful effects from an abortion after 20 weeks and having an abortion after 20 weeks can cause the pre-born child pain,” said Cathi Herrod, president of the Center for Arizona Policy, a conservative social advocacy group that championed the legislation.
Arizona was the sixth state to pass such a law since 2010, but it was the first to have it challenged in court.
Georgia and Louisiana passed their versions a few months after Arizona.
“Everybody really is looking to this case in particular because it seems that for the last two years abortion opponents have been really inviting a challenge with these laws and they seem to really want to use these laws to try to overturn Roe v. Wade,’’ said Elizabeth Nash, a policy analyst with the Guttmacher Institute, a New York organization that does research and policy analysis on abortion.
The New York City-based Center for Reproductive Rights and the American Civil Liberties Union filed the suit July 12 on behalf of three Arizona physicians, asking Teilborg to keep the law from taking effect Aug. 2.
Janet Crepps, an attorney with Center for Reproductive Rights, said Arizona was chosen as the legal battleground because its law was the most extreme.
Arizona uses a different starting point for determining length of gestation, which effectively places the ban at 18 weeks. Also, Arizona women have to be facing a medical emergency before they can get an abortion after 20 weeks while women in other states need only be facing a serious health condition.
There also weren’t any doctors willing to be plaintiffs in other states.
“Every state is a little different so you have to look and see if there are physicians who are regularly doing these procedures,” Crepps said. “Are they known in their communities to be doing abortions and terminations of pregnancy, are they willing to come out, sort of speak, if they’re not known and subject themselves to potential harassment?”
Crepps doesn’t see the case becoming a landmark decision that will do away with Roe.
“The Supreme Court has been very clear that states cannot ban abortion prior to viability and this law does that and so it’s not as if it’s presenting a unique legal question that the court hasn’t ruled on and so there’s nothing here that the court should want to reach out and rule on,” she said.
But Bender doesn’t see it that way, even though he believes the law is unconstitutional.
“I don’t think there’s any way you can keep this issue from the Supreme Court,” Bender said.
He said there are various scenarios that will lead the case or another one like it to the high court. The Supreme Court would probably accept the case if the 9th Circuit strikes down the law, but not if it upholds it, Bender said.
Only four justices have to agree to accept a case for review, according to Supreme Court rules.
“There are four that want to overrule Roe, so I think they’ll grant (review) if the 9th Circuit strikes this down,” Bender said.
A 9th Circuit validation of the law would open the door for even more states to pass similar laws and eventually some other circuit court would strike one down. Conflicting opinions among the circuit courts is one of the criteria the Supreme Court uses in deciding which cases to hear, Bender said.
A tenacious approach
Nash, the abortion policy analyst, said both sides on the abortion debate are tenacious and typically neither side gives in on litigation.
“If one side gets a decision they disagree with, they’re going to appeal to the next level, and certainly this is a big deal case,” Nash said.
Jakubczyk said a pro-life victory in this case will open the door for even more restrictive laws like a “heartbeat bill,” which would outlaw abortion once a heartbeat is detected, usually around eight weeks.
Jakubczyk helped draft heartbeat legislation in Ohio that passed that state’s House before stalling in the Senate and splitting the pro-lifers after many believed the law wouldn’t survive a legal challenge.
“A heartbeat bill would really send a message, ‘Look court, you have got to say do we, can we, should we protect unborn children once we know they are in the womb and have a heartbeat, once we know they are alive,’” Jakubczyk said.
Recent arizona Abortion laws
*Except in a medical emergency, it’s illegal to perform an abortion after
20 weeks of gestation. Many consider this law to be the most stringent in the country.
*The state may not contract or make grants to an entity that performs abortions, effectively barring public funds from going to Planned Parenthood. The law also prescribes the order of priority for expending family-planning money.
*Schools are prohibited from endorsing or providing financial or instructional support to any program that doesn’t present childbirth and adoption as preferred options to abortion.
*Expanding the “informed consent” law, an abortion is prohibited unless an ultrasound is first performed. The law also requires a physician to explain to the woman what the ultrasound is depicting, including dimensions of the unborn child.
*Public funds, including student tuition or fees at state universities and colleges, may not be used for training to perform abortions.
*An abortion based on the sex or gender of the unborn child is a felony offense.
*Following up on a law that prohibits non-doctors from performing an abortion, the Legislature removed the Arizona Board of Nursing’s authority to decide the scope of practice relating to an abortion.
*Public funds can’t be used to pay for a health insurance policy that includes abortion services.
*Abortion clinics are required to report an array of information to the state Department of Health Services, including the women’s race and ethnicity, marital status and reasons for getting an abortion.
20-week abortion ban comparisons
Here are differences and similarities in Arizona’s 20-week abortion ban compared to other states.
Passed in 2010: Nebraska determines gestational age from the estimated point of fertilization while Arizona’s 2012 law determines it from the first day of the last menstrual period.
Passed in 2011: Idaho, Indiana, Kansas, Oklahoma and Alabama adopted language that is identical to Nebraska, and their exceptions to protect a woman’s life and health are similarly worded to Arizona’s “medical emergency” exception.
Passed in 2012: Georgia and Louisiana have exceptions for pregnancies where the baby is expected to die immediately upon birth.