July 31, 2012 — U.S. District Judge James Teilborg on Monday upheld an Arizona law (HB 2036) that bans abortion after 20 weeks of pregnancy, clearing the way for the measure to take effect on Thursday, the AP/Washington Post reports (AP/Washington Post, 7/30). Within hours of the ruling, the law's opponents filed a request for an injunction to prevent the law from being implemented (Arizona Daily Star, 7/31).
The law bans abortion beginning at 20 weeks after a woman's last menstrual period, and, if enacted, would set the earliest limit for abortion in the country. The suit -- filed by three Arizona physicians, the Center for Reproductive Rights and the American Civil Liberties Union in U.S. District Court in Phoenix -- argued that the law unconstitutionally limits women's access to abortions prior to a fetus' viability (Women's Health Policy Report, 7/26). Arizona is one of several states that have enacted 20-week abortion bans in the past two years based on medically disputed research that a fetus can feel pain around that point (Schwartz, Reuters, 7/30).
The 20-week restriction differs from the standard affirmed by the Supreme Court in Planned Parenthood v. Casey that states cannot ban abortion prior to viability, as well as the court's ruling in Roe v. Wade that post-viability bans must include exceptions for the health or life of the woman (Kliff, "Wonkblog," Washington Post, 7/30). The Arizona law provides an exemption only when "immediate" termination of the pregnancy is required to avert the woman's death or risk of "substantial and irreversible impairment of a major bodily function." Physicians found to violate the law would face a misdemeanor charge and possible suspension or revocation of their licenses (Reuters, 7/30).
Details of Ruling
Teilborg acknowledged that the Supreme Court has said abortion bans prior to viability are unconstitutional. However, he said the Arizona law "does not impose a substantial obstacle to previability abortions." Rather, the law only limits abortion between 20 weeks and the standard of viability, with exceptions for the woman's life and health, Teilborg said (Arizona Daily Star, 7/31).
Teilborg wrote that the state's interest in the life of the fetus carries "sufficient force so that the right of the woman to terminate the pregnancy can be restricted." He added that the state provided "uncontradicted and credible evidence" that fetuses can feel pain at 20 weeks gestation (Gullo, Bloomberg Businessweek, 7/30).
Reaction From Law's Opponents
ACLU attorney Alexa Kolbi-Molinas said that Teilborg's interpretation of Casey is "just wrong on its face" (Bassett, Huffington Post, 7/30). The Supreme Court established in Casey that states may not prohibit abortion prior to viability "regardless of whether exceptions are made for particular circumstances," she said ("Wonkblog," Washington Post, 7/30).
Dan Pochoda, legal director of ACLU of Arizona, said, "This law forces a sick, pregnant woman to wait until she is on the brink of disaster before her doctor can provide her medically appropriate care." He added, "We will continue the fight to protect women's health and to ensure they can get the care they need" (Baker, "Healthwatch," The Hill, 7/30).
Repro Health Watch — an exciting new edition of the Women’s Health Policy Report — compiles and distributes media coverage of proposed and enacted state laws and ballot initiatives affecting women's access to comprehensive reproductive health care, as well as litigation in response to those provisions.