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.