A federal judge on Monday upheld the validity of an Arizona law designed to sharply limit abortions beyond 20 weeks of pregnancy.
Judge James Teilborg acknowledged that prior U.S. Supreme Court rulings have said states may not ban abortion outright before a fetus is considered viable. That is generally considered to be in the 22-24 week range and reflect current Arizona statutes.
But Teilborg said HB 2036 approved earlier this year and signed by Gov. Jan Brewer "does not impose a substantial obstacle to pre-viability abortions.'' Instead, the judge wrote, the law only limits abortion between 20 weeks and the point of viability, citing the exceptions for maternal life and health.
He specifically ruled the new limit is justified to protect maternal health and prevent a fetus from feeling pain while being aborted.
Monday's ruling comes on a request by the Center for Reproductive Rights and the American Civil Liberties Union, representing three Arizona doctors who perform abortions, asking Teilborg to block the law from taking effect as scheduled on Thursday while its validity was litigated.
But Teilborg did more than that. He took it upon himself to conclude that last week's hearing on that request for an injunction was a trial on the merits of the law. And then he threw out the challenge entirely.
Within hours of Monday's ruling, challengers asked the 9th Circuit Court of Appeals for a last-minute injunction prior to Thursday's effective date.
But no matter what the appellate judges do, that is unlikely to be the last word: Given the conflict with earlier U.S. Supreme Court decisions and the fact that several other states have similar laws, Teilborg's ruling -- the first ever on this kind of law -- is likely to end up before the nation's high court.
In challenging the law, foes said that a 20-week cutoff -- beyond which abortions would be allowed only in case of the mother's death or serious injury -- will deny women the right to abort a deformed fetus.
But Teilborg said evidence submitted by one of the three doctors who is challenging the law "stops short of claiming that there are any conditions that could only by diagnosed after 20 weeks that could not have been found before that time.'' Instead, he cited a statement of a witness for defenders of the law, concluding "it would be extremely rare to find a condition that could be diagnosed after 20 weeks that could not have been diagnosed earlier.''
The judge did acknowledge that "in certain unique circumstances'' a diagnosis of fetal abnormalities will not occur until after 20 weeks. But he said it would be up to a woman in that situation to challenge the law -- and only for herself.
But attorney Julie Rikelman of the Center for Reproductive Rights, said that's not an answer.
"If you're a woman facing a complicated pregnancy and you're suddenly needing to make a decision very quickly for what to do for yourself and your family, the last thing you have time for is to be rushed into getting a lawyer and rushing off to court to get an emergency order from the court that allows you to do what's best for your health,'' she said. "That is just a crazy way to expect people to take care of their health.''
But Maricopa County Attorney Bill Montgomery, who defended the law at last week's hearing, said that's not a woman's only option.
He pointed out that the law has an exception which allows a doctor to perform an abortion after 20 weeks if a pregnancy complicates a woman's medical condition "as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function.'' He said that provides doctors with permission to terminate a pregnancy without going to court -- and without running afoul of the law which carries a potential six-month jail term and loss of medical license.
While brushing aside potential complications to women from the law, Teilborg said the state has a legitimate interest in prohibiting abortions beyond 20 weeks.
"There is no question that the government may use its voice and its regulatory authority to show its profound respect for the life within the woman,'' he wrote, quoting from a 2007 U.S. Supreme Court ruling which outlawed partial birth abortions.
In this case, Teilborg wrote, Arizona lawmakers stated one purpose of the legislation was to prevent abortions where the fetus would feel the pain involved. He then proceeded in graphic terms to describe the procedure most likely used at that point in a pregnancy, saying lawmakers cited "substantial and well-documented evidence that an unborn child has the capacity to feel pain during an abortion by at least 20 weeks gestational age.''
He said that a fetus, when provoked by a painful stimulus such as a needle, does react. That, said Teilborg, is measured by increases in the child's stress hormones, heart rate and blood pressure.
"When the child is given anesthesia, these responses decrease, which is why doctors often give both the mother and the fetus anesthesia separately in cases of fetal surgery,'' the judge said. "Nowhere in the record is it suggested that a fetus is given anesthesia before being subjected to (either type of) abortion.''
Rikelman said the judge was wrong to blindly accept the legislative conclusion.
"American and British experts that have looked at this question have said that there is no evidence to support this claim and that fetuses cannot feel pain until many weeks after,'' she said. Anyway, Rikelman said, that's just an excuse.
"It's really just a thinly veiled attempt to justify the law,'' she said. "The law is about restricting abortion.''
Beyond the issue of fetal pain, Teilborg said the law was justified because lawmakers said they wanted "to protect the health of the pregnant woman, which resulted in part from a finding that the major complications of abortion are highest after 20 weeks of pregnancy.''
But Rikelman said that flies in the face of prior rulings by the U.S. Supreme Court -- going back to the original 1973 Roe v. Wade case which said women have a constitutional right to terminate a pregnancy -- which say that states cannot ban abortions before a fetus is viable.
"What the Supreme Court has said repeatedly is that whatever interest the state may have, none of them are strong enough to ban abortion before viability,'' she said.
But Teilborg said the procedures used at this stage of pregnancy to perform an abortion are similar to the partial birth abortions that the high court said in 2007 can be outlawed.
In a prepared statement, Brewer praised Teilborg's ruling, saying it poses "common sense restrictions to prohibit most abortions after 20 weeks of gestation'' based on issues of increased maternal risk and fetal pain.
Brewer also noted the law has other provisions which were not challenged, including requiring the state Department of Health Services to set up a website that describes the unborn child, including pictures or drawings representing the developing fetus at two-week intervals.
That website also must contain a statement that the father of a child is liable for support payments, even if offered to pay for an abortion as well as agencies that offer alternatives to abortion.