PHOENIX — A federal appeals court is poised to consider Arizona’s earliest-in the-nation ban of most abortions at 20 weeks of pregnancy amid debate over both its legality and its practical impact on women if allowed to take effect.
The case to be argued Monday before a panel of 9th U.S. Circuit Court of Appeals judges in San Francisco hinges on how far states can go in restricting abortions before viability, when a fetus is capable of surviving outside the womb.
The legal issue is whether the ban effectively prohibits abortions before viability, which would be barred by the U.S. Supreme Court’s 1973 Roe vs. Wade decision, or is merely a restriction such as others the high court has ruled that states can impose.
But it’s not just the Arizona ban’s legality that’s in dispute as lawyers, doctors and advocacy groups weigh in on both sides of the issue.
In fact, just about everything associated with the ban is subject to debate or uncertainty. That includes the validity of the justifications cited by its backers, whether the ban would cause real hardships for women and even exactly how the ban would be implemented.
Arizona is now among 10 states to enact versions of 20-week bans. However, Arizona’s ban is considered to be the earliest because its starting point to calculate a fetus’ “probable gestational age” would be about two weeks earlier than under the others states’ versions.
Aside from a decades-old North Carolina ban, all the bans were enacted in the past several years, starting with Nebraska in 2010.
Besides Arizona and Nebraska, other states with versions of 20-week bans are Alabama, Georgia, Idaho, Indiana, Kansas, Louisiana, North Carolina and Oklahoma. Most were enacted in the past several years.
A challenge to Idaho’s ban was scuttled early on, so Arizona’s ban is the first to be tested in court.
Arizona’s Republican-led Legislature approved it as part of a broader abortion law last spring. The ban was to have taken effect Aug. 2 but the 9th Circuit temporarily blocked implementation pending a ruling on an appeal of a judge’s ruling that upheld the law’s constitutionality.
The Roe vs. Wade ruling said states cannot prohibit abortions outright prior to viability, generally considered to be about 23-to-24 weeks of pregnancy, but the high court has ruled since that states can impose restrictions such as waiting periods and a ban on a specific late-term abortion procedure.
The Arizona ban was championed by abortion opponents who say it will help protect women from health risks associated with later-term abortions and prevent unborn child from being subjected to pain through abortions.
Those assertions are in dispute, but a prosecutor helping defend the ban said they are concerns that make the ban a reasonable restriction that the state can impose.
Because the ban has an exception for women with medical emergencies, it’s not an outright prohibition, Maricopa County Attorney Montgomery told the 9th Circuit in a brief. “The act does not prevent abortions.”
Supporters of legal abortion say the other side’s justifications ignore women’s health risks associated with pregnancy and other medical conditions and that claims of pre-viability fetuses experiencing pain are unproven.
Saying the ban is merely a regulation is a “fabrication,” said Janet Crepps, a Center for Reproductive Rights lawyer helping represent three Arizona OB-GYNS whose lawsuit challenged the ban. “For some women, it’s an outright ban prior to viability.”
While most of the other 20-week bans start the age calculation from a supposed date of conception, Arizona’s version begins with the first day of the woman’s last menstrual period. For most women, that would be about two weeks earlier than conception.
However, Arizona’s ban includes a yet-to-be-determined amount of wiggle room because the ban also tells doctors to use also other accepted medical practices, such as ultrasound exams, when determining a fetus’ age.
Arizona’s abortion law already used the last menstrual period as a dating technique before the ban was enacted, and its use isn’t controversial by itself because it’s a standard starting point in obstetrics for calculating a due date.
“LMP is the gold standard,” said Crepps, the Center for Reproductive Rights lawyer.
However, she and other critics of the ban said applying that measurement to a 20-week abortion ban both crosses a legal line and imposes hardships on women who might chose to abort pregnancies in the weeks immediately before viability.
Legislative supporters of the ban relied on testimony by Dr. Allan Sawyer, a Phoenix-area OB-GYN opposed to abortion, that it’d be very rare that fetal anomalies that might prompt women to get abortions couldn’t be detected earlier than 20 weeks of pregnancy.
Sawyer said ultrasounds and blood tests can detect abnormalities fairly early in pregnancies, well before 20 weeks.
That means women would have “time to make a decision on whether or not to abort,” said Rep. Kimberly Yee, the sponsor of the abortion bill that included the ban.
However, an Arizona OB-GYN opposed to the ban said many women don’t have early ultrasounds because of limitations of insurance coverage and that some don’t learn of anomalies such as the lack of a brain stem until right at about 18 or 19 weeks. Then it takes time to get a confirming diagnosis from a specialist, said Dr. Maria Manriguez.
“By the time they get an appointment, it could easily be 20 weeks and that person is not able to terminate that pregnancy that could not be viable,” said Manriguez.
According to Arizona Department of Health Service statistics, 188, or 1.4 percent, of the 13,606 abortions reported to the state as being performed in 2011 were at gestational ages of 20 or more weeks as measured by a woman’s last menstrual period.
Copyright 2012 The Associated Press.