A federal judge on Friday rejected a request that he appoint an attorney to represent the unborn who would be affected by a challenge to the state's new ban on abortions after 20 weeks.
In a brief order, Judge James Teilborg said Maricopa County Attorney Bill Montgomery, who made the request, did not propose any attorney who would be willing to represent those interests without being paid. The judge said that made a request he appoint someone inappropriate.
But Teilborg said he is open to listening to arguments on all sides of the issue when the case goes to court this coming week.
"To the extent that any third party believes that the court would benefit from the briefing of a particular issue or issues (whether it be on behalf of the unborn or the parents), such third party may file an appropriate motion to file amicus curiae briefing,'' the judge wrote. That opens the door for someone claiming to speak for the unborn to get legal briefs before Teilborg.
Montgomery's efforts to defend the law -- and allow the state to start enforcing it as scheduled on Aug. 2 -- put him at odds with Pima County Attorney Barbara LaWall.
In her own court filing, one of LaWall's deputies said she believes the 20-week ban is unconstitutional. And she said letting it take effect now, before a full-blown trial on its legality, could lead to her being asked to prosecute doctors and others for exercising their constitutional rights.
Montgomery told Capitol Media Services he thinks the interests of the unborn need to be presented when Teilborg hears arguments on Wednesday about whether to block enforcement of the law, at least for the time being. The reason, he said, is how lawmakers are defending the statute.
HB 2036 spells out that abortions cannot be performed after 20 weeks of pregnancy absent a medical emergency, defined as a condition that will result in the woman's death or "serious risk of substantial and irreversible impairment of a major bodily function.''
Three doctors who have challenged the law point out that the U.S. Supreme Court has previously ruled that states cannot ban abortions before the point where a fetus becomes viable. That is generally considered in the range of 22 to 24 weeks.
But Rep. Kimberly Yee, R-Phoenix, said the legislation is legally defensible because it is aimed at protecting the health of pregnant women. She said there is evidence that abortions are far more risky after the 20th week.
Montgomery said while that may be true, that defense of the law ignores other reasons that abortions should be banned at the 20-week limit. That includes questions of whether fetuses at 20 weeks can feel pain, which is why their interests need to be presented.
"Who really can then argue about the impact on any unborn children if that temporary restraining order is issued?'' Montgomery asked.
Montgomery already is on record as defending the legality of the statute. His office was named as a defendant in the case because it would be his attorneys who would prosecute Maricopa County doctors if they defy the ban.
LaWall also is a defendant. But Deputy PIma County Attorney Paula Perrera, filing a response for her boss, said it would be wrong to allow Arizona to begin enforcing a ban on 20-week abortions now, before a ruling on the statute's constitutionality.
Perrera said the public puts a trust in elected officials not to prosecute people who engage in constitutionally protected action.
"Among other issues, HB 2036 goes further than any other 'pain-based' abortion ban in the country and is unquestionably a ban on some pre-viability abortions,'' Perrera wrote.
Several other states have adopted a ban on abortions at 20 weeks.
But attorneys for the doctors say each of those measures the time based on the gestational development of the fetus. Arizona's law starts the counting at the woman's last menstrual cycle, meaning a woman could be considered pregnant two weeks before she has even conceived.
Perrera said the restrictions on the ability of the state to ban abortions set forth in the historic Roe v. Wade ruling in 1973 still apply.
"Viability marks the earliest point at which the state's interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions,'' she wrote.
"There is considerable risk that enforcement of HB 2036 may not only result in the deprivation of a constitutional right, for which there is no adequate remedy, but also cause the criminal prosecution of individuals who assist another in the exercise of that right,'' Perrera continued. "Because HB 2036 is not clearly in conformance with the law as stated by the United States Supreme Court, the Pima County Attorney believes that the interests of justice are best served by delaying its enforcement until such time as the issue of its constitutionality is resolved.''