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Abortion doctors seek halt to new law on 20-week ban
7/13/2012 1:15:00 PM
By Howard Fischer
PHOENIX -- Three doctors who perform abortions asked a federal judge Thursday to block the state from implementing a new law that 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, said those prior rulings are legally irrelevant to the reasons behind the new law.
"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.'
Rep. Kimberly Yee, R-Phoenix, the sponsor of the legislation, also 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.'
But Crepps, in the lawsuit jointly filed with the American Civil Liberties Union, said it is the proponents of the law who are off base in saying court rulings are trumped issues of maternal health and fetal pain.
``Neither of these assertions -- even if true -- nor any other asserted justification could support a ban on previability abortions,' the lawsuit says.
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.
None have been overturned. But she said the Arizona law is different.
One key is how the length of the pregnancy is computed.
In Arizona, the clock starts running as of the last day of a woman's menstrual cycle. Bernyk said that includes the two weeks before a pregnancy probably has occurred.
Yee said that counting is consistent with existing Arizona law.
But Bernyk said the 20-week abortion bans in other states have doctors determine the probable gestational age of the fetus, meaning how far along it is developed. The net result, she said, is those laws really amount to a 22-week cutoff based on a last menstrual cycle.
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 of pregnancy whose condition simply threatens her health.
The result, the lawsuit says, is that a woman with pregnancy-related health problems would be denied an abortion -- or would have to delay the procedure until her condition worsens to the point where she now has a real medical emergency.
Another issue in the litigation is the contention 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 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 challenger 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.'
Yee has acknowledged that if it were up to her, she would ban all abortions at any stage of pregnancy.
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.'
Challengers said the doctors have an interest in the issue because violators can be sentenced to up to six months in jail. That, they said, gives doctors "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.'
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