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An Arizona law making it a crime for doctors to perform abortions after 20 weeks of pregnancy was questioned by two federal appeals court judges who said it appears to flout the U.S. Supreme Court’s 1973 Roe v. Wade decision.
The lower-court judge who upheld the law should be overruled because Roe v. Wade allows women to abort pregnancies before fetuses can survive outside the uterus, Janet Crepps, an attorney for the Center for Reproductive Rights, today told a three-judge panel of the U.S. Court of Appeals in San Francisco.
U.S. Circuit Judge Andrew J. Kleinfeld, appointed to the court by President George H.W. Bush, said he understood that the Arizona legislation considered the possibility of a fetus feeling pain and the increased health risks to the mother in fashioning the law. Still, Roe v. Wade allows a woman to have an abortion even if she knows those risks, Kleinfeld said.
The Supreme Court “sacrificed those interests in favor of letting the woman have an abortion previability,” he said at today’s hearing.
The state’s law makes it a misdemeanor, punishable by as long as six months in jail, to perform an abortion after 20 weeks of pregnancy except in medical emergencies to prevent the mother’s death or “irreversible impairment of a major bodily function.”
Arizona is one of nine states in the past two years to ban abortions after the 20th week of pregnancy, around the time women commonly get ultrasounds to screen for fetal anomalies. The state’s law, which the American Civil Liberties Union said is the most extreme abortion ban in the nation, was signed by Governor Jan Brewer, a Republican, in April.
Lawyers for abortion rights supporters claim that the fundamental right to abortion under Roe v. Wade trumps Arizona’s concern that an unborn child may feel pain during an abortion, according to court filings. A healthy fetus is able to survive outside the uterus at 23 weeks to 24 weeks at the earliest, they said in court filings.
What Arizona is attempting to is “directly prohibit abortions prior to viability,” Crepps argued. Under Roe v. Wade, she said, the state retains the right to regulate abortion, “but it can’t strike at the heart of the right, and it cannot impose an undue burden on women seeking abortions.”
A federal judge in Arizona who upheld the law in July cited what he said was credible evidence of fetal pain and ruled that the state’s interest in protecting unborn children was paramount.
U.S. District Judge James Teilborg in Phoenix ruled that a woman’s right to abortion isn’t unlimited and that states’ interest in the lives of unborn children may have “sufficient force so that the right of the woman to terminate the pregnancy can be restricted.”
Arizona Solicitor General David Cole told the appeals court today the law was intended to protect the interests of pregnant women and unborn fetuses.
“The state legislature has the authority under our law to make findings and in this case they have made detailed findings that should not be cast aside as if they were some kind of after-thought,” Cole said. “I understand that it’s a difficult area, but the legislature balanced those things and did what it did and we are asking the court to uphold it.”
U.S. Circuit Judge Marsha Berzon, appointed by President Bill Clinton, said at the hearing that under Roe v. Wade, a woman’s right to end her pregnancy isn’t affected by other issues.
“The woman’s liberty interest prevails up until the point that the fetus can survive independently,” she said.
The law, set to take effect Aug. 2 of this year, was put on hold by the federal appeals court pending the outcome of the appeal. The panel, whose third judge was Mary Schroeder, appointed to the court by President Jimmy Carter, didn’t indicate today when it will rule.
Abortion laws in other states are facing legal challenges, including an Idaho law criminalizing abortions unless the procedure is performed in the first trimester by a doctor, a Mississippi law requiring doctors at abortion facilities to have admitting privileges at a local hospital and a South Dakota law requiring doctors to advise prospective abortion patients that they will face an increased risk of suicide.
The case is Isaacson v. Horne, 12-16670, U.S. Court of Appeals for the Ninth Circuit (San Francisco). The lower-court case is Isaacson v. Horne, 12-01501, U.S. District Court, District of Arizona (Phoenix).
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