SAN FRANCISCO -- Federal appellate judges on Monday picked apart legal arguments by Maricopa County Attorney Bill Montgomery on why Arizona can ban abortions for most women at 20 weeks.
Montgomery sought to convince a three-judge panel of the 9th U.S. Circuit Court of Appeals that the "new medical evidence'' of increased risk of the procedure at that point, coupled with other new evidence that a fetus at that point can feel pain, entitles state lawmakers to conclude the procedure should be off limits at that point and beyond except to save the mother's life or significant harm.
But Judge Andrew Kleinfeld said U.S. Supreme Court rulings, going back to 1973, make it clear that both are legally irrelevant when it comes to the rights of women to terminate a pregnancy prior to viability, the point a fetus can live outside the womb. That is generally considered to be between 22 and 24 weeks.
"There is no right to an unsafe abortion,'' Montgomery responded.
Kleinfeld said that may be the law at some point in the future. But the judge said that as long as the Supreme Court has said the risk to the mother of a pre-viability abortion does not trump her choice, then he and his colleagues likely have no choice but to declare the Arizona law invalid.
Judge Marsha Berzon also brushed aside Montgomery's arguments about new evidence. She said the Supreme Court "perfectly understood'' that the later an abortion is performed, the greater the risk to the mother.
"Ordinarily, one gives people the right to make medical decisions, including the risk to themselves, as long as they're told what the risks are,'' she said.
And Kleinfeld said the relative risks do not matter.
"People decide to have dangerous, even foolishly dangerous medical procedures done on themselves all the time,'' he told Montgomery.
"Sometimes they have to shop around for a doctor because it's such a stupid idea,'' Kleinfeld continued. "But they still have a right to do it.''
Judge Mary Schroeder also pointed out that the Supreme Court already has dealt with the question of the risk to the mother. She said that's why the high court has upheld various laws to regulate abortion, including that that require women be informed of the potential dangers of the procedure.
Montgomery is hanging his legal hat on a 2007 Supreme Court ruling known as Gonzales which upheld a federal law outlawing "partial birth'' abortions, even if performed prior to viability. That procedure involves partially delivering a baby before killing it.
But Janet Creps of the Center for Reproductive Rights argued -- and Kleinfeld appeared to agree -- that the high court was solely outlawing one type of abortion and not all abortions.
"Gonzales said you can't have the kid partially born,'' Kleinfeld said. "You have to kill the kid in the uterus.''
Montgomery responded that if the high court could find partial-birth abortions unacceptable, even without testimony on fetal pain, then it could easily uphold the Arizona law based on the new evidence legislators considered.
State Solicitor General David Cole, also defending the law, appeared to do no better with a more technical argument about why foes cannot challenge the law. He said only a woman denied an abortion at or after 20 weeks of pregnancy has standing, not the two doctors even with their statements that they already perform such procedures.
That brought raised eyebrows from Kleinfeld. He asked how a woman at 20 weeks of pregnancy could bring a full-blown court challenge and get a ruling in the few weeks before viability.
"With all due respect, that's the woman's problem,'' Cole responded. "She could have made that decision at an earlier time.''
But Kleinfeld said there are some serious fetal medical conditions that cannot be diagnosed before 20 weeks. And the judge was not sure it makes sense to deny a woman the right to abort a fetus at that point, even if it does feel pain.
"He'll have one operation after another and then will die ... basically be born into hell and die,'' the judge said of children with those abnormalities.
While Montgomery and Cole argued the legality of the measure on behalf of prosecutors, their views were not unanimous. Pima County Attorney Barbara LaWall, in her own legal brief, sided with the doctors who are challenging the law as unconstitutional.
Montgomery conceded after the hearing that this is unlikely to be the last stop in his legal battle.
He said it is very well possible -- and that he would understand -- if the appellate judges concluded they have no choice but to void the Arizona law based on prior Supreme Court precedent. But Montgomery said he is convinced there are at least four justices on the high court who would want to use this case to revisit all that precedent.
That is a crucial number: It takes four out of the nine to grant a petition to review.
The 9th Circuit judges gave no indication when they will rule. In the interim, the court has blocked the state from enforcing its provisions.