Two medical clinics that provide abortion filed suit Monday asking a federal judge to block enforcement of a new law that imposes a 24-hour waiting period to terminate a pregnancy.
The action, filed by the Tucson Women's Center and Family Planning Associates, contends the law, set to take effect Sept. 30, will place "substantial obstacles" in the path of women seeking to exercise their constitutional right to an abortion. It says some women will delay the procedure, which makes it more risky, while others will forego it entirely.
That lawsuit, filed on the clinics' behalf, is only one attack on the law approved by the Legislature earlier this year. In separate action, Planned Parenthood Arizona filed a similar suit Monday in Maricopa County Superior Court seeking to void at least some of the provisions of the law.
The issues go beyond the mandated "cooling off" period and that the law requires that women be given certain information directly, some of it by a physician. That, both lawsuits charge, can result in women having to make two trips to a clinic, a particular hardship on patients from rural areas.
Other elements of the new law being challenged include:
- A ban on nurse-practitioners performing surgical abortions;
- Requiring minors to have a parental consent form notarized;
- Allowing pharmacists and other health care providers to refuse on moral grounds to dispense contraceptives and the "morning after" pill.
Rep. Nancy Barto, R-Phoenix, who sponsored the legislation, said all those provisions are both good policy to protect the health of women as well as legally sound.
A hearing on the Planned Parenthood request for an injunction is set for next week; no hearing has been set in the federal court case.
One of the biggest issues - and potentially the greatest hurdle for challengers of the law - is the waiting period. The U.S. Supreme Court in 1992 specifically rejected a challenge to a similar Pennsylvania requirement.
But attorney Suzanne Novak of the Center for Reproductive Rights, which is representing the clinics, said the justices ruled only that, given the facts of that case, a waiting period did not impose any substantial hardship on the ability of women to terminate a pregnancy. That, Novak said, is not the case here.
To make her case, she presented statements from 92 Arizona women who had abortions.
In one case, a woman said requiring two trips would have made it difficult for her to keep her pregnancy a secret from others. Another woman in the military said she could not get a second day off for another month. And a third said if she missed additional classes she would be kicked out of school.
Planned Parenthood, in its own challenge to some elements of the waiting period, cited similar concerns.
"The two-trip requirement ... threatens the confidentiality and privacy of women seeking abortion because the need to make an extra, unnecessary trip, often out of town, increases the risk that partners, family members, employers, co-workers, or others will be tipped off to the fact that the woman is having an abortion," its lawsuit states. And Planned Parenthood lawyers say that forcing a woman to come to the clinic a second time exposes her "to further harassment by anti-choice demonstrators who regularly picket Planned Parenthood clinics."
Barto defended the 24-hour waiting period - and specifically the requirement for face-to-face counseling - rather than allowing a woman to get the information over the phone and avoid having to make a second trip.
"This ensures that they get the information that they need and the attention that they get for their own health," she said.
"They get it when they seek other medical attention," Barto said. "In regards to abortion, they don't."
The requirement, however, does not stop there. The law says certain information can be given to women only by the physician who will perform the abortion and not a nurse or other staffer.
Bryan Howard, president of Planned Parenthood Arizona, said the law is designed solely to throw roadblocks in the path of women wanting an abortion.
"There's no similar requirement for any other procedure," he said. "This legislation singles out pregnant women for regulation that invades their privacy in a way that doesn't single out any other group."
The Planned Parenthood lawsuit takes particular aim at a provision in the law that lets health care providers refuse to dispense - or even tell women - about the morning-after pill.
That emergency contraception actually is a high dose of hormones which, according to the lawsuit, is "highly effective" in preventing pregnancy within five days of unprotected sex. It is available without prescription to adults; minors must have a prescription.
It is controversial because of questions of exactly how it works.
One theory is that it blocks ovulation. But another is that it prevents a fertilized egg from implanting in the womb, something that some say amounts to an abortion.
Arizona law already allows doctors to refuse to perform or facilitate abortions. This new law, not only extends that right to pharmacies, hospitals and all their employees but also expands it to cover not just abortion but also emergency contraception.
"If you as a health care professional have some personal qualms about providing that information or providing the service, then given the time frames, you have a professional ethical obligation to refer the person who's approached you to someone who will provide that information," Howard said.
But Barto defended what she called the "right of conscience" provision.
She said expanding the law to cover the "morning after" pill simply updates existing laws covering abortions. And Barto rejected the idea that the provision will make it harder for women to get access to emergency contraceptives.
"These medications are widely available, even on the Internet," she said. "And if you can't get them from one place, you can get them at the next."
Barto said even most small communities have more than one pharmacy, meaning if the owner of one won't carry or dispense the pills, a store elsewhere will have them.
The requirement in the statute that surgical abortions be performed only by a doctor comes despite a finding by the Arizona Board of Nursing that it is safe for properly trained nurse practitioners to perform the procedure. Howard said this, too, creates obstacles to women having abortions because there are only a limited number of doctors in Arizona who are trained in terminating pregnancies and willing to do it.
That law, however, does not preclude nurse-practitioners from performing "medical abortions," when patients are administered a drug designed to abort the fetus. That drug, RU-486, is effective only in the early stages of pregnancy.