Arizona won’t be banning abortions at 20 weeks, at least not yet.
In a brief order Wednesday, the 9th U.S. Circuit Court of Appeals granted an emergency request by foes of the law to keep it from taking effect as scheduled Thursday while the judges review a lower court ruling which said the law is constitutional. They gave no reason for their order.
Wednesday’s ruling means the law remains on hold for at least two months, if not more.
The court gave opponents of the law until Sept. 4 to file formal briefs on why they believe it is illegal. Supporters, led by Maricopa County Attorney Bill Montgomery, then have until Oct. 3 to respond.
And the court gave the foes another two weeks after that to reply, with a hearing on the issue to follow.
The measure, approved earlier this year, was designed to supersede existing Arizona law which bans abortion at the point of fetal viability, considered to be from 22 to 24 weeks.
Supporters argued that the change protects maternal health, saying abortions at 20 weeks or beyond are more dangerous than procedures performed earlier in pregnancy. They also said there is evidence that a fetus at that stage of development can feel pain.
Opponents disputed the fetal pain provision. But they also said the law — and a decision last week by a federal judge to uphold it — flies in the face of two prior U.S. Supreme Court rulings which have said states cannot ban or impose substantial obstacles on abortions prior to viability.
In granting the injunction less than 12 hours before it was set to take effect, the appellate judges rejected Montgomery’s arguments that the law should be allowed to take effect while the court considers its legality. He argued that those seeking to overturn the law “have yet to identify even one pregnant woman who is disadvantaged by the enactment of the act.”
But Janet Crepps, attorney for the Center for Reproductive Rights, said it’s virtually certain someone will be affected — and soon.
She said the three doctors who are challenging the law regularly provide abortions to patients at or after 20 weeks but before viability.
“Based on the fact that they provide more than 50 such procedures per year, they are very likely to have such a patient within the next several days and almost certain to have such a patient within the next 21 days,” Crepps told the court.
Challengers also pointed out the risk to doctors who perform abortions in violation of the law: up to six months in jail and loss of their medical licenses.
Wednesday’s order most immediately stays a ruling last week by U.S. District Court Judge James Teilborg who concluded that the law is constitutional.
In his decision, Teilborg cited both the maternal risk and fetal pain arguments offered by supporters of the law.
He also rejected claims that the law amounts to an outright ban on abortions after 20 weeks. Teilborg noted the law would still allow an abortion to prevent a woman’s death “or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function.’’
Opponents countered that the exception is so narrow as to amount to an effective -- and illegal -- ban on pre-viability abortions.
While Montgomery opposed the injunction, he told Capitol Media Services that the appellate court decision to enjoin its enforcement is not necessarily bad news for him and those who support the law. He noted the judges did not explain their reasoning.
“It’s hard to tell with a short order like this whether the court felt that it’s better to just have a whole briefing (on the legality of the law) and address it at once or if they really think the plaintiffs have a good argument to make,’’ he said.
And Montgomery noted the judges put the case on a fast track, at least by appellate court standards.
“I would take (that) as a sign that they do appreciate the argument that the state made, that they’re worth consideration, and sooner rather than later.’’
Crepps, however, said she does not see the expedited briefing schedule as an indication the judges find any legal merit to the law or Montgomery’s defense.
“This is a one-issue case with a very small record that maybe the court doesn’t see that there’s much more to think about,’’ she said. “Maybe they think it’ll be just as easily disposed of in our favor.’’
Crepps said, though, that the injunction is important.
“It’s very concerning that we had to go right up to the brink of women losing their constitutional rights and having their health jeopardized in the first place,’’ she said.
Matthew Benson, press aide to Gov. Jan Brewer, said his boss was disappointed by the decision of the appellate court to issue the injunction. Brewer opposes legalized abortions except in case of rape, incest or a threat to the life of the mother.
“But it’s not entirely unexpected,’’ said Benson.
“What’s important to keep in mind is the court hasn’t ruled on the merits of the case,’’ he said. “The governor remains optimistic that when they do they will uphold the constitutionality of this law.’’
Montgomery said he is unlikely to ask the U.S. Supreme Court to allow the law to take effect while its legality is being litigated. He said it might take as much time to get the high court involved as it will take to get a ruling from the 9th Circuit.
The case, however, still could end up there: Whichever side loses is likely to seek Supreme Court review.