County attorney wants 9th Circuit to approve Arizona banning abortions after 19th week

SAN FRANCISCO -- Maricopa County Attorney Bill Montgomery goes to federal court Monday seeking approval for Arizona to start banning virtually all abortions after the 19th week of pregnancy.

Montgomery wants the 9th U.S. Circuit Court of Appeals to dissolve the order it issued in August blocking the state from enforcing the law. He contends the statute, approved by the Legislature earlier this year, is within the power of the state to regulate the procedure.

But Monday's hearing is likely to be little more than a warm-up for the issue winding up before the U.S. Supreme Court.

That's because Janet Creps of the Center for Reproductive Rights said the Arizona law is a direct challenge to prior high court rulings making abortion legal.

For Montgomery to win his case, Creps said he will have to convince the 9th Circuit to disregard those rulings, something it cannot do. So the only way to uphold the law is have the nation's top justices revisit -- and potentially modify or overturn entirely those prior cases, going all the way back to the landmark 1973 ruling of Roe v. Wade.

Montgomery, for his part, thinks he's found a defense for the Arizona law that won't require overturning Roe: a more recent Supreme Court ruling allowing states to ban partial-birth abortions.

But even he conceded that the case is likely to wind up being decided not here but in Washington.

Roe v. Wade and its legal progeny essentially have said that states may not ban abortions outright prior to viability, the point at which a fetus can live outside the womb. Current medical science puts that somewhere between 22 and 24 weeks.

The justices, however, have allowed states to enact "reasonable regulations'' on those procedures. Montgomery says this law fits that exception.

The Arizona law makes it a crime for a doctor to perform an abortion beyond the 19th week unless necessary to prevent a woman's death or "substantial and irreversible impairment of a major bodily function.'' That provision, Montgomery argues, is what makes it legal.

"We don't have a ban,'' he said.

"If there is a medical emergency, then a woman does have access to abortion services,'' Montgomery explained. "I would say that we are regulating the abortion procedure.''

Creps said that's torturing the definition of "regulation.'' She said the fact that some women might be able to get an abortion legally at 20 weeks and beyond does not alter the fact that others who are not in an emergency situation will not.

"When you make something illegal, subject to criminal penalties, such that a woman who wants an abortion before viability but after 20 weeks can't get it because it's illegal for her physician to perform that procedure, that's a ban,'' Creps said. "And that's what the Supreme Court was talking about when it said you can't take away from a woman the ultimate right to make a decision prior to viability.''

Montgomery, however, is relying on that 2007 Supreme Court decision upholding the ban on partial-birth abortions, whether performed before or after viability.

"There are distinct interests that the state can assert in regulating abortions,'' he said of that ruling. Montgomery said the Arizona law fits that exception.

"We're looking at regulations that take into account the health and welfare of the mother,'' he said, citing studies that show abortions at 20 weeks and beyond are more dangerous than earlier procedures. And Montgomery said the state has an "interest in potential life, further illuminated by the latest in neonatal science that now makes us aware of the ability of the unborn child to feel pain.''

But Creps said that 2007 ruling simply banned one type of abortion procedure -- where a fetus is partially delivered first -- to terminate a pregnancy. She said nothing in that ruling allowed a state to ban all other procedures used prior to viability.

That gets back to whether this case will ultimately become the chance for the U.S. Supreme Court to revisit Roe v. Wade.

Montgomery agreed that the high court, in ruling against partial-birth abortions, was trying not to overturn its earlier rulings "where the only predominant interest was the woman's right to choose an abortion.'' He said, though, that decision gave the first inklings that the justices now believe that other factors need to be taken into account, including the health and welfare of the mother, even if they do intrude on the right of a woman under Roe v. Wade to terminate a pregnancy prior to viability.

This case, he said, could ultimately give the high court a chance to consider "how anachronistic Roe has become in light of advances in medical and neonatal science.''

Creps said she also is aware of the possibility this case could become the vehicle for the Supreme Court to revisit Roe v. Wade. And she noted this is a very different bench than the one that first ruled on the issue in 1973.

But Creps said even if this case gets to the high court, she does not envision them using it to overturn nearly 40 years of rulings. If nothing else, she said, the justices give strong consideration to stare decisis, the principle that courts abide by prior rulings.

"I think the justices are going to be very reluctant to go back and say, 'No, we're now going to completely undermine that rule,' '' she said.

"I think and hope that they would see that that would really undermine the credibility of the court,'' Creps continued. "And it would be seen as influenced by politics where it should be determined based on stare decisis and the recognition of women's individual right,'' she said.

Montgomery does have some basis for believing he can convince the appellate court to see the law as regulatory versus an outright ban.

In July, U.S. District Court Judge James Teilborg said the law "does not impose a substantial obstacle to previability abortions.'' He said it was instead a narrow limit, between 20 weeks and the point of viability.

And Teilborg accepted Montgomery's arguments that the law is justified to protect maternal health and prevent a fetus from feeling pain while being aborted.

The case is slated to be heard sometime after 9:30 on Monday before Judges Marsha Berzon, Mary Schroeder and Andrew Kleinfeld.