Arizona abortion law struck down

May 21, 2013

A federal appeals court has struck down an Arizona law that criminalized performing abortions after 20 weeks of pregnancy. The case could wind up at the U.S. Supreme Court. The 2012 law bans most abortions at or after 20 weeks, with only a narrow exception for emergencies. 

Supporters say the law is supposed to reduce risks to women's health and fetal pain, but a three judge panel of the Ninth Circuit Court of Appeals ruled it unconstitutional on Tuesday. The ruling said Supreme Court precedent protects womens' rights to seek an abortion up until the fetus is viable to live on its own. It is generally agreed that the point of fetal viability isn't reached until 23 or 24 weeks into pregnancy.

Challengers of the law applauded the ruling.

"Abortion might be a controversial issue," said Janet Crepps, an attorney with the Center for Reproductive Rights. "But when it comes to constitutional protection for women's rights, the law is clear here. "

Nevertheless, several states have passed laws that restrict abortions before the point of viability. After Arizona's law passed, state restrictions were written to ban abortions at earlier and earlier points. Arkansas passed a law that prohibited most abortions after 12 weeks, and North Dakota passed another restricting most abortions after six weeks.

"We are seeing a very disturbing trend, with the states thinking that is okay to pass these bans, and what we see from the Ninth Circuit that it is not," said Crepps.

The ruling only applies to the western states under the jurisdiction of the Ninth Circuit. One state within that jurisdiction, Idaho, has passed a restriction of this kind.

Defenders of the law say they will challenge the case up to the U.S. Supreme Court.

"If the Ninth Circuit cannot permit Arizona to act because of Supreme Court precedent, then the Supreme Court must change that precedent," said Maricopa County Attorney Bill Montgomery, who is a named defendant in the case and also defended it in court.

In the same statement, Montgomery said Arizona has a compelling and important interest in "protecting the health and well-being of expectant mothers from the dangers of abortions after 20 weeks and to protect children in the womb from needless and horrific imposition of pain."

Cathi Herrod of the Center for Arizona Policy, an organization that was a supporter of the law, said she was not discouraged by the ruling.

"The Ninth Circuit is well known for rulings that are appealed to the Supreme Court and get overturned," Herrod said.

But Crepps said it would be unusual for the high court to revisit the issue, though she acknowledged abortion is unusually polarized as a topic.

"If this case was not about abortion, but about some other legal question, there wouldn't really be a debate about whether the court would take the case because it is settled law," Crepps said.

The abortion restriction has never taken effect in Arizona. While a lower court ruled that it could stand, the Ninth Circuit blocked the law while the case was under review.

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