Calling a woman's rights "unalterably clear,'' a federal appeals court on Tuesday struck down Arizona's nearly year-old ban on abortions at 20 weeks and beyond.
In a unanimous decision, the 9th Circuit Court of Appeals acknowledged that the law on what states can and cannot restrict has varied since the landmark 1973 case of Roe v. Wade. That ruling barred states from banning a woman's right to an abortion, at least early in her pregnancy.
But Judge Marsha Berzon, writing for the court, said one thing has remained constant.
"A woman has a constitutional right to choose to terminate her pregnancy before the fetus is viable,'' she said. "A prohibition on the exercise of that right is per se unconstitutional.''
While a federal judge last year declared the law valid, it has never been enforced. That's because the appellate court put it on "hold'' while it considered the appeal.
Tuesday's ruling is a setback not only for the majority of legislators who voted for the ban but also for Gov. Jan Brewer who signed the measure. She believes most abortions should be illegal.
But it is not likely the last word. Maricopa County Attorney Bill Montgomery, who personally argued the case to the appellate court, has said he sees the law as a chance to have the whole issue of the viability standard revisited by the U.S. Supreme Court.
And Cathi Herrod, president of the anti-abortion Center for Arizona Policy, said she is "not surprised or discouraged.''
"The 9th Circuit Court of Appeals is well known for opinions that get overturned by the United States Supreme Court,'' she said.
But Herrod said the high court does not have to overturn Roe v. Wade and subsequent rulings which have clearly said states cannot ban pre-viability abortions. Herrod said she believes the statute can be defended without asking the court to void its historic ruling.
"Obviously, I wouldn't be upset if they did,'' Herrod added.
The legislation makes it a crime for a doctor to perform an abortion beyond the 19th week unless it's necessary to prevent a woman's death or "substantial and irreversible impairment of a major bodily function."
Montgomery conceded during legal arguments last year in San Francisco that Supreme Court rulings generally prohibit states from interfering with a woman's right to terminate her pregnancy any time before a fetus is considered viable outside the womb. That is generally considered somewhere around the 23 or 24-week mark.
But he pointed out that the high court has allowed reasonable restrictions for legitimate reasons. And Montgomery said lawmakers had such justification for what he termed just a restriction.
One was the conclusion by the Legislature that a fetus at 20 weeks can feel pain. The other, also based on testimony, is there is an increased risk to the mother's health from an abortion at and after 20 weeks.
But Berzon said no amount of argument from Montgomery could overcome the fact that the Arizona law was not a restriction like a 24-hour waiting period but an outright ban. And that, she said, Arizona cannot do.
"Since Roe, the Supreme Court and lower federal courts have repeated over and over again that viability remains the fulcrum of the balance between a pregnant woman's right to control her body and the state's interest in preventing her from undergoing an abortion,'' Berzon wrote. And because it is a ban, and not merely a limitation, "no state interest is strong enough to support it.''
In a concurring opinion, Judge Andrew Kleinfeld said there may be legal ways for the state to deal with its stated concerns.
"Were the statute limited to protecting fetuses from unnecessary infliction of excruciating pain before their death, Arizona might regulate abortions at or after 20 weeks by requiring anesthetization of the fetuses about to be killed, much as it requires anesthetization of prisoners prior to killing them when the death penalty is carried out,'' Kleinfeld wrote.
He also brushed aside the measure's stated interest in protecting a woman's health as a reason to keep her from getting an abortion at or after 20 weeks.
"People are free to do many things to their health, such as surgery to improve their quality of life but unnecessary to preserve life,'' Kleinfeld said. "There appears to be no authority for making an exception to this general liberty regarding one's own health for abortion.''
Kleinfeld acknowledged there are problems with using viability as the standard to determine when a state can and cannot ban abortion, pointing out that in 1973 that was considered 28 weeks. And he said medical science for premature babies may advance to where they are viable three or four weeks earlier than now.
But Kleinfeld said no one from the state is arguing that has happened, forcing his court to decide the legal issue based on the current state of science.
"The 9th Circuit got it exactly right,'' said Janet Creps, the attorney for the Center for Reproductive Rights which challenged the law.
"When you tell somebody that they are absolutely forbidden to do something, that's a ban,'' Creps said. "Most people can pretty commonly understand when something is a ban and something is a regulation.''
Kleinfeld also said the fact that an Arizona woman wanting an abortion at or after 20 weeks can go to another state does not make the law any more unacceptable.
"I am unaware of any case in which one state might deprive someone of a constitutional right because the individual could exercise it in another state,'' he said.