A federal appeals court panel on Monday sharply questioned lawyers
defending an Arizona law that bans late-term abortions starting at 20 weeks of
pregnancy except in medical emergencies, which opponents say is the toughest in
the United States.
In San Francisco, a three-judge panel of the 9th U.S. Circuit Court of
Appeals heard the case after it blocked the Republican-backed Arizona law from
going into effect earlier this year. Three abortion providers challenged the
law in court. The Arizona law bars doctors from performing abortions starting at 20
weeks of pregnancy, except in medical emergencies, and could send doctors who
perform them to jail. The American Civil Liberties Union, which is suing to
stop the law, said it was more extreme than similar laws elsewhere, because the
way Arizona measures gestation means it would bar abortions two weeks earlier
than in other states.
Those states also set the limit at 20 weeks but have different ways to
calculate gestation time. Arizona already bans abortions at the point of
viability, when a fetus might survive outside the womb, generally at 23 to 24
weeks. Judge Andrew Kleinfeld, a panel member appointed by former President
George H.W. Bush, repeatedly expressed concern that the law might not afford
women the opportunity to abort a fetus with birth defects in cases where the
defects are not apparent until just before 20 weeks.
He also questioned the need to prohibit abortions at that stage of the
pregnancy, especially for fetuses bound to develop "horrible birth
defects." "They're basically born into hell and then die,"
Kleinfeld said. "I don't see how the courts could act before
viability" of the fetus. "With due respect, that's the woman's
problem," responded David Cole, Arizona's solicitor general. "She
should have made that decision earlier."
William Montgomery, the attorney for Maricopa County in Arizona who also
defended the law before the appeals panel, said new medical evidence showed a
fetus has the capacity to feel pain during an abortion at 20 weeks of
development. But Judge Marsha Siegel Berzon called that a "red
herring" in terms of the constitutional questions the law raises. The
three-judge panel did not say when it could make a final ruling in the case.
The U.S. Supreme Court legalized abortion nationwide in 1973, but has allowed
states to place restrictions on the procedure from the time of viability unless
the woman's health was at risk.
In July, days before the 9th Circuit panel blocked the law until it
could fully consider the case, U.S. District Judge James Teilborg ruled that
the Arizona measure was consistent with limits federal courts have allowed. Talcott
Camp, deputy director of the ACLU reproductive freedom project, said the Arizona
law's exception to allow late-term abortion applies only in immediate
emergencies if delay can jeopardize a woman's life or seriously harm her
health. "The medical emergency exception is truly, horrifically
narrow," she said in a phone interview. "This is a law that allows
her to get an abortion only when she is in emergency crisis."
Aside from Arizona, seven U.S. states have put laws into effect in the
past two years banning late-term abortions, based on hotly debated medical
research suggesting a fetus feels pain starting at 20 weeks of gestation,
according to the ACLU.
Source: Chicago Tribune
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