SAN FRANCISCO — A three-judge panel of the 9th U.S. Circuit Court of Appeals cast a skeptical eye Monday on the country’s most restrictive abortion law, which prohibits the procedure after 20 weeks of pregnancy unless there’s a medical emergency.
Even Judge Andrew J. Kleinfeld, a conservative jurist appointed to the appeals court by former President George H.W. Bush, said Arizona’s law appears to wrongly prohibit abortions before “viability,” when the fetus can live outside the womb. That generally is considered to occur sometime after 23 weeks of pregnancy. The 1973 Roe v. Wade ruling says states cannot prohibit abortions outright before viability.
Maricopa County Attorney William Montgomery, defending the Arizona law in court, said the ban was enacted to protect women from undergoing a risky medical procedure.
“People decide to have dangerous, foolishly dangerous, medical procedures all the time,” Judge Kleinfeld countered. He said prostate removal and other risky procedures that may not be medically necessary occur often and are not prohibited but left to patients and doctors.
Mr. Montgomery and Arizona Solicitor General David Cole fared no better with the other two judges on the panel, Marsha S. Berzon and Mary M. Schroeder, especially when Mr. Montgomery mistakenly mixed up their names during his arguments. Both judges were appointed to the appeals court by Democrats.
Judge Berzon agreed with Judge Kleinfeld that patients make risky medical decisions daily and asked rhetorically, “Are there any statutes against cosmetic surgery?”
The court gave no indication when it would rule.
Arizona’s Legislature banned abortion after 20 weeks of pregnancy as part of a broader abortion law last spring. Three Arizona obstetrician-gynecologists, supported by the Center for Reproductive Rights and the American Civil Liberties Union, filed a federal lawsuit seeking to strike down the law.
U.S. District Judge James Teilborg, a Clinton appointee, upheld the law in July, and it was to take effect on Aug. 2. But the appeals court blocked implementation until it issues its ruling.
Arizona is among 10 states to have enacted versions of 20-week bans. Others are Alabama, Georgia, Idaho, Indiana, Kansas, Louisiana, Nebraska, North Carolina and Oklahoma. North Carolina’s ban has been in effect for decades, while Nebraska was the first of the other states to enact its law, in 2010.
A challenge to Idaho’s ban was scuttled early on, so Arizona’s ban is the first to be tested in court. Arizona’s ban is considered to be the most stringent because the starting point it uses to calculate a fetus’s “probable gestational age” is about two weeks earlier than under the others states’ versions.
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