State lawmakers have broad authority to impose new restrictions on abortion and who can perform the procedure, the Arizona Court of Appeals ruled Thursday.
The judges said that prohibiting anyone but a licensed physician from surgically terminating a pregnancy does not impose undue restrictions on a woman’s constitutional right to choose. Judge Peter Swann, writing for the unanimous court, said the fact that nurse practitioners are specifically trained to do the procedure and have a comparable safety record is legally irrelevant.
In their 44-page ruling, the judges also upheld laws that:
• Require women to have a face-to-face meeting with the doctor who will perform the abortion at least 24 hours ahead of time, even if that means two trips to the clinic.
• Allow medical professionals to refuse to perform abortions, provide certain contraceptives or dispense the “morning after’’ pill even to victims of rape.
• Mandate that consent forms by parents allowing a child to get an abortion must be notarized.
Thursday’s ruling is a major victory for abortion foes, as it overturns an injunction issued two years ago by Maricopa County Superior Court Judge Donald Daughton. He concluded that letting the restrictions take effect could cause “irreparable harm’’ to women.
But the decision, unless overturned, has even broader implications. It likely signals that Arizona courts will uphold several new restrictions on abortion that lawmakers enacted this year, including barring nurse practitioners from performing even medical abortions.
That is because the judges said only when a law places an “undue burden’’ on women does it violate their constitutional rights. The fact that it may place some burden on them, they concluded, is not enough.
Planned Parenthood Arizona, which filed the lawsuit and also is challenging the newer laws, did not immediately respond to requests for comment. But it is expected to appeal to the Arizona Supreme Court.
In the 2009 lawsuit, the organization had argued that it is not fair to require women to make two trips to a clinic to terminate a pregnancy. Attorneys from the organization said it puts a particular hardship on those who live in rural areas — away from where Planned Parenthood performs abortions — as that would require either extensive travel or an overnight stay at a hotel.
Daughton said there is nothing wrong with requiring two consultations. But he called the requirement for a first meeting personally with a doctor unnecessary, saying that a telephonic consult would legally suffice.
“Courts have long recognized that eye-to-eye, face-to-face interaction is superior to videoconferencing,’’ he wrote. “Therefore the legislature could reasonably conclude that telephonic consultation was inferior to in-person consultation during which the interviewer could perceive the condition and comportment of the patient, in furtherance of the state’s interest in the woman’s health.’’
Swann said it is possible that the requirement that physicians provide counseling could increase the cost of the procedure. And he said Planned Parenthood might have to hire more doctors.
“But it does not practically deny a large portion of affected women their right to choose an abortion,’’ he said. And Swann said Planned Parenthood never provided evidence that they could not find enough doctors to meet the need.
Finally, Swann said there is nothing wrong with requiring that first visit be with a doctor, as opposed to a nurse, saying lawmakers are free to decide what things have to be performed only by specific licensed professionals.
The court applied that same logic to upholding the requirement that only doctors can perform surgical abortions. He said there is a long line of court rulings, right up to the U.S. Supreme Court, that lawmakers are entitled to require abortions be performed only by doctors “to ensure the safety of the abortion procedure.’’
Swann said different issues are at play in the “right of conscience’’ provisions that Planned Parenthood challenged.
He pointed out that the Arizona Supreme Court, in a 1976 ruling, upheld a separate law that barred University Medical Center, as a state-owned facility, from performing abortions except to save the life of the mother. Swann said there was no constitutional violation because women had other places to go.
In this case, Swann said, the law deals with the rights of private individuals to refuse to perform certain acts. And that falls outside constitutional restrictions on what government can and cannot do.
“A woman’s right to abortion or contraception does not compel a private person or entity to facilitate either,’’ he wrote. “Whatever right a woman may have to chart her own medical course, it cannot compel a health-care provider to provide her chosen care.’’
Swann specifically rejected arguments by Planned Parenthood that the law would allow medical professionals to abandon patients who may be in emergency situations. He said doctors and others are still governed by requirements to provide adequate care to patients and can still be sued for malpractice when they do not meet appropriate standards.
The issue of emergency contraception has come more to the forefront of the debate over abortion in recent years because of questions of exactly how the “morning after’’ pill — essentially a high dose of hormones — works.
One theory is that it prevents a woman from ovulating. But another is that it can prevent a fertilized egg from implanting in the womb, which some people equate with abortion.
It is the same argument against the intrauterine device that keeps an egg from implanting, which is why some medical professionals who are opposed to abortion will not provide them.
The ruling comes a month before another judge is to hear challenges by Planned Parenthood to this year’s changes in abortion laws.
While the 2009 laws restricted surgical abortions to physicians, it left open the option that specially trained nurse practitioners to administer RU-486, a drug that induces abortion several days later.
The new change extends all the requirements for a surgical abortion to a medical abortion. While that includes mandates for equipment and personnel that must be present, the biggest change is that nurse practitioners will no longer be able to perform the procedure.
That law was supposed to take effect last month. But both sides agreed to delay enforcement until Maricopa County Superior Court Judge Richard Gama hears arguments on its legality next month.