Judge blocks key parts of new abortion law - East Valley Tribune: East Valley Local News

Judge blocks key parts of new abortion law

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Posted: Tuesday, September 29, 2009 4:59 pm | Updated: 1:04 am, Sat Oct 8, 2011.

A judge late Tuesday blocked the state from enforcing key provisions of a new abortion law that was set to take effect at midnight Tuesday.

3 abortion laws go into effect Wednesday

A judge late Tuesday afternoon blocked the state from enforcing key provisions of a new abortion law that was to have taken effect at midnight Tuesday.

Maricopa County Superior Court Judge Donald Daughton agreed with arguments by attorneys for Planned Parenthood that it is unconstitutional to require a women who wants to terminate her pregnancy to make two separate trips to the clinic at least 24 hours apart. The judge said there was a possibility of "irreparable harm'' to women seeking an abortion if the law were allowed to take effect.

But Daughton said the problem with the law was not the "cooling off'' period itself but the fact that a woman would actually have to go to the clinic herself to be told certain information about the procedure and alternatives. The law, approved by the Legislature earlier this year, also mandated that the information be provided by a doctor.

Planned Parenthood attorney Eve Gartner had argued the requirement for the two trips would make getting the abortion more difficult and, in some cases, impossible for some women.

For example, she said there are women in abusive relationships who already have a hard enough time concealing their abortion from a partner.

She also argued that some women might not be able to get time off or a baby sitter or have transportation to come back a second time. And Gartner said if a woman can't come back immediately, she delays the procedure, which makes the process riskier.

Daughton accepted essentially half of her argument.

He agreed to let the state require the 24-hour delay, giving women time to reflect on their decision after being given the information lawmakers want them to have. That includes being told:

  • the probable anatomical and physiological characteristics of the unborn child at the time of the procedure;
  • that the father of the child is liable for support, even if he agreed to pay for the abortion;
  • medical assistance benefits may be available for prenatal care, childbirth and postnatal care if they decided against an abortion;
  • public and private agencies can assist the woman before and after the birth, whether she chooses to keep the child or put it up for adoption.

But Daughton said the state has to give the woman the option to get that information by telephone or some alternative other than a face-to-face meeting at the clinic. And he said the counseling did not have to be done by a doctor but instead could come from "a qualified staff member.''

In a separate ruling Tuesday, U.S. District Court Judge David Campbell rejected a similar request to block the waiting period made by attorneys for the Tucson Women's Clinic. Campbell said they failed to present sufficient evidence of harm to women to keep the law off the books.

Campbell's ruling, however, is largely legally irrelevant, at least at this point, because of Daughton's contrary decision.

In that ruling, Daughton also barred the state from enforcing several other changes in the law.

One sought to expand an existing law that now permits physicians to refuse to participate in abortions for religious or moral reasons. The new language that Daughton found unacceptable would have extended that to say they don't have to be involved in any way, even to the point of telling a woman that abortion is an option.

And Daughton also would not let the state enforce a related provision that would have allowed pharmacists to refuse to dispense emergency contraception, even to rape victims.

Backers of the law had argued that this drug, essentially a high dose of hormones, can work by preventing a fertilized egg from implanting in the womb, something they equated with abortion.

The judge also barred the state from enforcing another change in law that would require that all surgical abortions be performed only by a physician. That would end the practice now used by Planned Parenthood of allowing the procedure to be performed by nurse practitioners with specialized training.

Finally, the judge said the state cannot mandate that parental consent forms now required before a minor can have an abortion be notarized ‑ at least not yet. Daughton said the state first has to ensure that notaries are properly informed of their obligations to keep the information confidential.

Tuesday's ruling is not the last word. Instead, it simply blocks the state from enforcing the law until a full-blown trial to review its legality, something that could take months ‑ or years with appeals.

Daughton's ruling is a defeat for the Arizona Attorney General's Office, which had asked the judge to let the law take effect. Assistant Attorney General Paula Bickett had argued it is legally irrelevant if the law would make getting an abortion more difficult or costly. She said the only legal test for the judge to consider is if it would block a woman's constitutional access to abortion.

Sen. Linda Gray, R-Glendale, a supporter of the law, said part of the reason for Planned Parenthood's victory was the refusal of Daughton to let two anti-abortion groups and their allies to actively participate in the case and defend the laws. The judge rejected arguments by attorneys for the Center for Arizona Policy and the Alliance Defense Fund that the interests of those who support the restrictions would not be adequately represented by the state Attorney General's Office.

"Those are the ones who have the expertise (on abortion laws) and should have been allowed, in my opinion, to be able to defend what I voted on and what those who supported me in my election supported,'' complained Gray, who attended Tuesday's state court hearing.

Expertise aside, Gray also questioned the sincerity of state attorneys in defending the law, as Attorney General Terry Goddard is an outspoken supporter of abortion rights.

Goddard removed himself from any decisions made in the case and instead turned the supervision over to Tim Nelson, his chief deputy. But Gray said she is not convinced that is enough.

Ann Hilby, spokeswoman for the Attorney General's Office, said the lawyers on the case did the best they could to defend the law. And she said the outcome would not have been any different even if the attorneys from the two anti-abortion groups had been allowed to participate in the arguments.

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