State lawmakers are entitled to ban abortions at 20 weeks -- or even at the point of conception -- Maricopa County Attorney Bill Montgomery said Wednesday.
Montgomery acknowledged at a hearing in federal court that prior U.S. Supreme Court rulings have said states cannot outlaw the right of a woman to terminate a pregnancy before a fetus is viable. And he agreed that, generally speaking, the current state of medical technology makes that sometime after 20 weeks.
That is significant because Montgomery is defending a law, set to take effect Aug. 2, which would ban abortions at that point except in narrow circumstances to save the life or health of the mother.
Montgomery told U.S. District Court Judge James Teilborg, though, that the decision of elected legislators to set the ban at 20 weeks is entitled to deference from the courts. He said lawmakers had evidence not only that a fetus can feel pain at that point but that abortions are more risky.
In fact, Montgomery said he sees the challenge to this law as a possible starting point for forcing the high court to review its prior rulings which have made viability -- currently considered to be in the 22-24 week range -- the point at which states can ban the procedure.
Montgomery, however, did not stop there.
After the hearing, Montgomery said he believes the Arizona Legislature could legally ban all elective abortions. He even said this case might force the Supreme Court to revisit -- and even overturn -- its historic 1973 Roe v. Wade decision which concluded that women have a constitutional right to terminate a pregnancy for any reason they want, at least prior to viability.
"It certainly does provide an avenue for the court to fully address just how viable is a viability standard,'' he said.
Montgomery cited a 2007 Supreme Court ruling upholding a federal ban on partial-birth abortions. He said the justices said lawmakers are entitled to "due deference'' in making decisions about abortion.
"I would recognize the inherent human dignity in a life at the moment of conception,'' Montgomery said, saying the procedure should be outlawed "unless it impacted the health and welfare of the mother.''
"I would not define that as an abortion,'' Montgomery explained. "I would define that as a procedure that was intended to deal with intended risks and challenges that woman faced.''
And he said each state should make that decision.
Janet Crepps, an attorney with the Center for Reproductive Rights, said Montgomery is legally off base.
She said the Supreme Court has allowed states to impose restrictions on how abortions can be conducted and what information must be made available to women.
But Crepps, representing one of three doctors who perform abortions at 20 weeks -- and who sued to have the law declared unconstitutional -- said it remains the law of the land that any ban on a pre-viability abortion is beyond the ability of state or federal lawmakers to enact. And she said that makes the Arizona law unconstitutional.
Teilborg is a long way off from reaching any conclusion. That process, with appeals, could take years.
But he has to decide before this coming Thursday, Aug. 2 whether to allow the state to start enforcing the law in the interim. He gave no indication Wednesday when that ruling on the request for the injunction will come.
Crepps told Teilborg he has to rely on those prior Supreme Court rulings.
"Every woman seeking abortion pre-viability is entitled to obtain one,'' she said.
Montgomery argued that right is not absolute. If nothing else, he said, lawmakers can consider the fact that an abortion at 20 weeks is far riskier to the mother than one performed much earlier.
He even suggested that any challenge to the law would have to be based on individual circumstances, a situation that would require each pregnant woman to come to court and present evidence.
Crepps said that would be legally impermissible
"Prior to viability, it is the woman's right to balance their risks,'' she argued, in consultation with her physician. "It is not for a court to make those individualized judgments.''
And she said Montgomery's position is insulting to women.
"That's treating women as if they have no autonomy interests here,'' Crepps said.
One issue that seemed to concern the judge is that question of viability. He said that has been a changing standard since the U.S. Supreme Court issued its first ruling.
"In 1973, viability was generally considered at 28 weeks,'' he told Crepps. When the high court reaffirmed the right to an abortion in 1982 in a case involving the state of Pennsylvania, Teilborg said, that line had moved to the 24-25 week range.
"The trend tends to be moving earlier rather than later in viability,'' the judge said. And given that trend, he said, that could make 20 weeks "on the border of viability.''
Crepps told the judge that what might be the situation sometime in the future is legally irrelevant.
She said Teilborg has to decide the issue based on the current state of science. And she said courts are not in the best position to decide viability.
"It has to be a decision left to physicians on a case-by-case basis,'' she said. And Crepps said the fact that 20 weeks might be close does not matter.
"The (Supreme) Court has also said the states can't fudge the line,'' she said.
Teilborg also did not rule Wednesday on Montgomery's motion to sideline Pima County Attorney Barbara LaWall in defending the law.
Montgomery pointed out that LaWall has said the law has constitutional problems and should probably be enjoined until a final resolution of its legality. He said that effectively has her siding with the challengers.
But Deputy Pima County Attorney Paula Perrera said her boss has not concluded that the statute is definitely illegal. And she said if LaWall is not part of the case, then any injunction Teilborg issues blocking the law would not be effective in Pima County.
Engaged Voter posted at 11:31 am on Wed, Jul 25, 2012.
http://www.eastvalleytribune.com/local/the_valley/ahwatukee/article_70270594-7636-5285-bac6-0bdb4b1b1ad7.html
These anti-choicers need to make their minds up...if they want to call themselves Pro-Life then they need to start caring about that life AFTER it passes through the birth canal.
Enough of this ignorant, religious based NONSENSE!
American Socialist posted at 11:53 am on Wed, Jul 25, 2012.
HELLO!!??
Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
You dont not have the right to cram you religion down other peoples throats! Have fun being destroyed in the supreme court over this. This is America so start acting like Americans....
And just how much of the taxpayers dollars are going to be wasted on this one??
downtownresident posted at 12:28 pm on Wed, Jul 25, 2012.
The lunatics run the asylum here in Arizona.
We have a senile sheriff spending millions of tax dollars to defend his illegal activities.
Lunatics like Kathi Herrod spouting drivel about embryo's rights and a dsifunctional ligislature more worried about campaign contributions than doing anything to help their constituents.
Let's not foregt "Fingers" Brewer and the Pearce twins. I wonder if one of them will hire Olivia Cortez in the unlikely event that either gets elected.[beam]
chuckles3 posted at 12:48 pm on Wed, Jul 25, 2012.
Ha ha love the hate guys. Keep it up.
I can't choose my healthcare, or if I want to have a large soda in NYC, but a woman can destroy a life without the consent of the father who helped create it.
Or, in some states, my 13 year old daughter can get a court to approve an abortion over the objections of her parents. In other states, I cannot get a vasectomy without written permission from my spouse.
Please tell me what being 'pro-choice' is all about.
Engaged Voter posted at 1:10 pm on Wed, Jul 25, 2012.
chuckles3, you keep using that word - hate - I do not think it means what you think it means.
Why can't you choose your healthcare? I am able to choose mine.
Why can't you have a large soda? (buy 3 smalls, problem solved)
"in some states, my 13 year old daughter can get a court to approve an abortion over the objections of her parents"
What states, and under what circumstances? Would you deny a 13 year old girl this option if she was pregant due to molestation by her own father?
"In other states, I cannot get a vasectomy without written permission from my spouse."
Aha! I agree with you on this unfair gender bias. But wait...with your fixation on things that "can destroy a life", you shoul be for banning vasectomies too, right?
"Please tell me what being 'pro-choice' is all about."
I think I covered it pretty well...any questions?
downtownresident posted at 1:39 pm on Wed, Jul 25, 2012.
chuckles3,
You're a nut case.
If you lived in a real world, you'd know that 99.99% of the "fathers" that get girls pregnant don't give a whit about any babies that might come along and certainly have no intention of ever contributing ANYTHNIG to the baby of the mother, except more sperm.
You self-righteous jerks make me sick.
DrJCA1 posted at 3:19 pm on Wed, Jul 25, 2012.
This so-called attorney needs to be dis-barred. He is going to waste a fortune on something the Supreme Court will not even hear. Roe vs Wade is the law of the land and the SC almost never overturns it's decisions.
Now for the holier-than-thous. If you are against a woman's choice in this matter, why don't you start a group where you sign legal papers adopting a baby that one of these women do not want? Why don't you legally sign papers and volunteer to pay "X" number of dollars every month towards the care and feeding of one of these babies?
Abortion is a very personal and private matter. It does cause emotional pain for the female involved and you phoney "Christians" should be more sympathetic and understanding, as well as helpful, towards these women. After 40 years in medicine I can assure you that the decision to have one of these procedures is never taken lightly and never done because the lady is bored on Tuesday afternoon. There are financial, emotional, physhological, and physical reasons a pregnant woman decides to have an abortion. And don't bring up the garbage about them doing so because it's "inconvenient" to have a baby. In all my years in the medical field, knowing hundreds of women who chose to have one, I never heard that baloney excuse. The only people I hear it from are the flaming holier-than-thous who are always right and the rest of us are always wrong.