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10/1/2013 3:12:00 PM
State seeks more authority on abortion restrictions

Howard Fischer
Capitol Media Services

PHOENIX -- Attorneys for the state are asking the U.S. Supreme Court to give Arizona -- and every other state -- more authority to restrict abortions.

In a petition filed Friday, the lawyers contend Arizona has a right to effectively ban abortions after the 19th week of pregnancy. Maricopa County Attorney Bill Montgomery, who has taken the lead defending the 2012 law, told the justices state lawmakers were well within their rights to make the procedure illegal based on risk to the mother and evidence, albeit disputed, that a fetus can feel pain at that point.

Montgomery made the same claim earlier this year to the 9th U.S. Circuit Court of Appeals, only to be slapped down by the judges who blocked enforcement of the law. They said they were bound by 40 years of Supreme Court precedent which says a woman has an absolute constitutional right to terminate her pregnancy prior to viability.

He says that's not so.

But Montgomery is laying the groundwork that could blow up the historic Roe v. Wade ruling that first set out the right to an abortion. And he said the high court itself already has opened that door.

Montgomery said the justices at that time said they were not in a position to speculate when life begins. But he noted the justices themselves upheld a ban on so-called "partial birth' abortions in 2007. And in that ruling the court called it "uncontested' that "a fetus is a living organism while within the womb, whether or not it is viable outside the womb.'

He said that, by 20 weeks, the likelihood of a live birth "is so overwhelming and the baby's development so advanced that the word 'potential' cannot properly be used to describe the actual human life at issue.' And that, Montgomery said, gives states the right to ban the procedure at that point, regardless of whether the fetus is viable.

The move to seek Supreme Court intervention will get a fight from the American Civil Liberties Union. ACLU attorney Kelly Flood said she will urge the justices not to disturb the precedents they have set.

But even she conceded there is a possibility that the current court, far different than the one that was on the bench in 1973, might decide to revisit Roe v. Wade, "especially given the conservatives on the court.'

At that point, the fate of abortion laws -- and where states can draw the line -- could turn on whose medical experts the court believes.

Lawmakers voted to make it a crime for a doctor to perform an abortion beyond the 19th week unless it's necessary to prevent a woman's death or "substantial and irreversible impairment of a major bodily function.'

The ACLU filed suit on behalf of several doctors who perform those later-term abortions.

A trial judge refused to disturb the law. But Judge Marsha Berzon, writing for a unanimous panel of the 9th U.S. Circuit Court of Appeals, said Supreme Court precedent, going back to Roe v. Wade, makes all the evidence about maternal health and fetal pain irrelevant.

"A woman has a constitutional right to choose to terminate her pregnancy before the fetus is viable," she wrote, something attorneys for the state concede does not occur before 23 or 24 weeks. "A prohibition on the exercise of that right is per se unconstitutional.'

Montgomery, however, said there are ways the high court could revisit its earlier rulings in light of what he said is new evidence.

"The court could decide that when Roe v. Wade was decided it was implicit that they were relying on the then-state of medical knowledge,' Montgomery said. He said the justices could decide to "update what the Roe court thought' and decide that, based on new medical knowledge, draw the line at a different point.

That "new medical knowledge,' he said, is actually a combination of three factors.

One is that, generally speaking, the longer into a pregnancy a woman waits, the more risky the procedure. But Montgomery acknowledged that, by itself, does not give the state the right to step in.

That point was underlined when Montgomery made the same arguments to the 9th Circuit, only to be interrupted by Judge Andrew Kleinfeld who pointed out that people have "foolishly dangerous medical procedures' done all the time.

"Sometimes they have to shop around for a doctor because it's such a stupid idea,' Kleinfeld continued. "But they still have a right to do it.'

But Montgomery said there's more.

One is the argument about whether a fetus at that point can feel pain. And related to that is what he said is "maintaining the integrity of the medical profession.'

"If, in fact, an unborn child can feel pain at 20 weeks, then do we really want our medical profession engaged in procedures that are going to deliberately and, because of the procedure, intentionally going to cause that kind of pain?' Montgomery said. "Is that the position we want our doctors to be in?'

Flood called the question of pain a "non-issue.'

"The citations and the support for that theory that the state has cited are, in the view of legitimate experts, specious at best and misleading and just as a matter of fact, not true,' she said.

Flood, however, is counting on the high court ignoring all that and leaving its existing precedents untouched.

"The ultimate issue is all we have to look at is pre-viability,' she said, an area off limits to state bans.

Montgomery, however, said that line is not as bright as foes of the Arizona law contend, citing that 2007 ruling upholding a federal ban on so-called "partial birth' abortions. And the justices said that ban applies even before viability, ruling that "a fetus is a living organism while within the womb, whether or not it is viable outside the womb.'

Flood, however, said that case dealt only with a specific procedure for abortion and is not a license for states to ban all abortions prior to viability.

Arizona is actually one of 13 states that have adopted law banning abortions before the point of viability. But the Center for Reproductive Rights says the Arizona law is different in many ways.

One is how the length of pregnancy is computed.

In some states doctors determine the probable gestational age of the fetus. But the Arizona law uses the last day of a woman's menstrual cycle, a practice foes of the law contend counts the two weeks before a pregnancy probably has occurred.

The exception to the ban for a "medical emergency' covers only conditions that would result in the woman's death or serious risk of substantial and irreversible impairment of a major bodily function.'

Challengers to the law say that does not help a woman at or after 20 weeks of pregnancy whose condition simply threatens her health.

They result would be to deny an abortion or force a woman to wait until her condition worsens where she has a real medical emergency.

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Reader Comments

Posted: Thursday, October 3, 2013
Article comment by: Mary Heartman

@ T. J. O'Malley
Re: "...women who choose to do this or use abortion as birth control should be sterilized."

On whose authority? Certainly not on God's.

Posted: Thursday, October 3, 2013
Article comment by: Mr. TJ, a cleft palate Is not something that A baby will die from.

A birth defect that is not compatible with life, means the child will not live after being born. Trisomy 18 and Trisomy 13 are just a few of the examples when the baby will die not long after birth. Birth defects are the leading cause of death in babies during first 30 days of life. About 19,000 babies die every year from birth defects. Many of these defects don't show up until the mother is 18 plus weeks pregnant. Why shouldn't the mother have a choice whether to carry the baby as long as she can (most defects result in premature births) or to terminate the pregnancy?

Posted: Wednesday, October 2, 2013
Article comment by: T.J. O'Malley

@ DEAR STATE OF ARIZONA, although I can agree that if the child is not going to survive birth because of something as you described with the brain, then yes fell abortion would be justified, but what do you feel is a birth defect that are not comparable to life, down syndrome, clef lip, missing limbs, does that justify to you as a right to abort? Well I hope not because that is real !@#$%^, I once read an article not sure if it was true, a couple was suing their doctor because he knew the child was gonna be born with a birth defect, the should have been told so the could abort a non perfect chid, women who choose to do this or use abortion as birth control should be sterilized.

Posted: Wednesday, October 2, 2013
Article comment by: Ah yes- Government small enough -

To fit right into a womans uterus.

Just what we all voted for...or not.

Posted: Wednesday, October 2, 2013
Article comment by: This is a Move in the right direction

Keep pushing Mr. Montgomery, even the lady in roe v wade didn't follow through with her abortion, highly ironic since that case has allowed abortion for so long. 3,000-4,000 babies are aborted each day, millions have been killed since r v w.

Posted: Tuesday, October 1, 2013
Article comment by: Dear State Of Arizona

There are no jobs in my womb. Do what you were elected to do and represent your constituents.

Are you aware that the primary reason for an abortion after 20 weeks is because the fetus will be born with anencephaly, that is without a brain or brain stem. They die shortly after birth, some of them don't live thru birth and are born dead. Who are you to judge a woman who terminates a pregnancy because of an ancephalic baby, or a baby that is born with birth defects that are not comparable with life.

Again, there are no jobs inside my womb so stay out of it.

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