Calling the Arizona legislation constitutionally flawed, proponents of abortion rights on Monday urged the U.S. Supreme Court to block the state from enforcing a ban on the procedure at 20 weeks.
In legal filings with the high court, attorney Janet Crepps of the Center for Reproductive Rights said it is long-settled precedent that states cannot interfere with the ability of a woman to make a decision prior to a fetus being viable. She said there is no question but that, under current medical standards, a fetus is not viable at 20 weeks.
What the high court ultimately decides will set precedent nationwide. Crepps said while other states have adopted similar legislation, this is the first case to get to the Supreme Court.
Until 2012, Arizona regulated but did not ban any abortions prior to viability, something that Crepps said occurs around the 24th week after a woman's last menstrual cycle. And no one has argued it happens before 22 weeks.
But state legislators approved the 20-week ban, sponsored by Rep. Kimberly Yee, R-Phoenix, after saying they now have evidence that a fetus at 20 weeks can feel pain. They also cited testimony of a higher risk of the procedure to a woman at that point.
The only exceptions are for conditions that would result in the woman's death or “serious risk of substantial and irreversible impairment of a major bodily function.”
Crepps, representing several Arizona doctors who perform abortions beyond 20 weeks, filed suit. She said a majority of their patients at that point do so due either to fetal abnormalities or to protect their health.
While a trial judge ruled the law valid, the 9th U.S. Circuit Court of Appeals said the statute runs directly contrary to the historic precedent-setting 1973 ruling in Roe v. Wade, which concluded the government cannot interfere with a woman's right to an abortion prior to viability. So in August, Maricopa County Attorney Bill Montgomery, who is defending the law, asked the high court to intercede.
Crepps, in her legal filing Monday, said the justices should rebuff the request.
“The court has identified this, that the state can't ban abortion prior to viability, as a central tenet, core component, the heart of the decision in Roe v. Wade,” said Crepps, the lead attorney for a legal team that also includes the American Civil Liberties Union.
“What the state is asking for is not just a little bit of a moving of the line,” Crepps continued. “They're asking essentially for the court to throw out the whole basis of its (earlier) holdings.”
The question of whether the justices agree to hear the case could depend on how they believe things have changed since 1973 — and whether any of that is legally relevant.
Montgomery, in his legal filings this past summer, said there is evidence that the risk to a woman from the procedure is greater at 24 weeks than it is at 20. He argued that gives state lawmakers the legal right to intercede.
Crepps said there's nothing new there.
“That the risks of abortion increase as pregnancy advances has always been known to this court,” she told the justices. Crepps said that was inherent in the original Roe v. Wade ruling, which said that viability marks the “earliest point” where the state can justify a ban.
More to the point, Crepps said this is none of business of Arizona lawmakers.
“It is for a woman, and not the state, to weigh medical risks and other equally important factors to determine whether or not to continue her pre-viability pregnancy,” she wrote.
Anyway, Crepps said, there is “simply no credible evidence that ... legal induced abortion is riskier for a woman at 20 weeks than carrying to term.”
Crepps dismissed the claims of fetal pain as having been “rejected by the major medical organizations in the field to address the question.”
Crepps said she is not saying the line for state intervention has to remain at 24 weeks. In fact, she noted, viability in 1973 was considered to be closer to 28 weeks.
But Crepps said the justices should not move the point of absolute protection of a woman's right to choose unless and until there is medical evidence of viability at an earlier point.
Crepps also warned the justices of the dangerous precedent she believes would be set if they accepted Arizona's arguments that legislative findings of maternal health and fetal pain entitle state lawmakers to impose new restrictions.
“If a legislature could ban abortion weeks before viability based on findings with such meager medical support, then the right of a woman to make this most personal decision would be subject to majority rule as surely as if it had no constitutional protection whatsoever,” Crepps wrote. And that, she said, would essentially invalidate the 1973 ruling declaring pre-viability abortion legal and that there would be “no limit on when a state may rest from a woman and her family the decision of whether to continue or to end a pregnancy.”
That change, said Crepps, should be avoided.
“Two generations of American women and families have come of age, depending on constitutional protection for their reproductive decisions,” she said.