Three doctors who perform abortions asked a federal judge Thursday to block the state from implementing a new law which bans terminating a pregnancy after 20 weeks.
The lawsuit contends the statute, set to take effect on Aug. 2, runs directly afoul of prior U.S. Supreme Court rulings.
“Prior to viability, states can’t ban abortions,” said attorney Janet Crepps of the Center for Reproductive Rights. That point at which a fetus can live outside the mother, which is reflected in current Arizona law, is generally considered to be in the 23-week range.
But Cathi Herrod, president of the anti-abortion Center for Arizona Policy, brushed aside those prior rulings.
“That’s not the issue here,” she said. “The issue is whether states have the right to protect the health and safety of women because there’s an increased risk to the health of women having abortions after 20 weeks.”
And Rep. Kimberly Yee, R-Phoenix, the sponsor of the legislation, said lawmakers heard evidence that a fetus at 20 weeks has a sufficiently developed nervous system to feel pain which “can actually be more significant than an adult.”
The outcome of the Arizona case could set some precedents nationwide.
Kate Bernyk of the Center for Reproductive Rights said seven other states also have bans on abortions at 20 weeks. And none have been overturned.
But she said the Arizona law is different. And the key is how the time is counted.
In Arizona, the clock starts running as of the last day of a woman’s menstrual cycle. Bernyk said that includes two weeks before a pregnancy probably has occurred.
By contrast, she said the laws in other states have doctors determine the probable gestational age of the fetus. That adds two weeks to the period where abortions are allowed.
Potentially more significant, the lawsuit says the “medical emergency” exception to the ban in the Arizona law is far narrower than exists elsewhere. That exception covers only conditions which would result in the woman’s death or “serious risk of substantial and irreversible impairment of a major bodily function.”
Challengers said that provides no relief to a woman at or after 20 weeks whose pregnancy simply threatens her health. The result, according to challengers, is denying that woman an abortion — or having her delay the procedure until her condition worsens to the point where she now has a medical emergency.
The lawsuit also charges that a 20-week ban denies women the right to make certain decisions about their pregnancies.
It says many women undergo prenatal testing at about 18 to 20 weeks of gestational age seeking information on the development of their child
“As a result of this testing, some women will be learning that their fetus has a medical condition or anomaly that is incompatible with life or that will cause serious lifelong disability,” the lawsuit said. And under current Arizona law, they have the option to terminate that pregnancy.
That option, the challengers say, is foreclosed under the Arizona law.
“It’s just really an unbelievable display of hostility toward women’s lives and health and fundamental rights,” Crepps said. “And that why we felt we had to challenge it.”
Yee, however, said other doctors told lawmakers that any diagnosis of abnormalities “should occur well before that 20th week.”
Attorney General Tom Horne sidestepped questions of whether he believes the statute is legal.
“Arizonans expect their attorney general to vigorously defend the state’s laws,” he said in a prepared statement. “As attorney general I am committed to doing that, and this law will be no exception.”
In challenging the law, the Center for Reproductive Rights, along with the American Civil Liberties Union, said the law presents the doctors they represent with “an untenable choice: to face criminal prosecution for continuing to provide abortion care in accordance with their best medical judgment, or to stop providing the critical care their patients seek.”