AZ court upholds limits on abortion

Curbs on who can perform them not found to be 'undue burden'
2011-08-12T00:00:00Z 2011-08-12T10:56:46Z AZ court upholds limits on abortionHoward Fischer Capitol Media Services Arizona Daily Star
August 12, 2011 12:00 am  • 

PHOENIX - State lawmakers have broad authority to impose new restrictions on abortion and who can perform the procedure, the Arizona Court of Appeals ruled Thursday.

The judges said prohibiting anyone but a licensed physician from surgically terminating a pregnancy does not impose undue restrictions on a woman's constitutional right to choose.

Judge Peter Swann, writing for the unanimous court, said the facts that nurse practitioners are specifically trained to do the procedure, are available in rural areas where Planned Parenthood does not have doctors, and have a comparable safety record are legally irrelevant.

The court also upheld laws requiring a woman to meet personally with the surgeon 24 hours before an abortion and for parental-consent forms for minors to be notarized, and allowing medical personnel, including pharmacists, to opt out of any participation in an abortion.

Thursday's ruling is a major victory for abortion foes, overruling an injunction issued two years ago by Maricopa County Superior Court Judge Donald Daughton, who concluded the restrictions could cause "irreparable harm" to women.

The injunction, however, remains in place to allow time for Planned Parenthood Arizona to decide whether to appeal, and for the Supreme Court to decide whether to review the ruling.

But Thursday's decision, unless overturned, has broader implications.

The appellate court said a law can be struck down only if it places an "undue burden" on a woman's right to abortion. They said the fact it may place some burden on women is not enough.

The ruling seems to portend Arizona courts likely will uphold additional limits on abortion not covered in this lawsuit, such as one approved earlier this year barring nurse practitioners from performing even medical abortions using RU-486.

Bryan Howard, president of Planned Parenthood Arizona, said the decision, if allowed to stand, will have a severe impact on women living in rural areas, who will now "likely have to travel to Phoenix or Tucson, and over a two-day period."

In his original ruling, Daughton upheld a requirement women wait 24 hours after meeting with their doctor to have the procedure, but said a personal meeting is not necessary. A consultation by telephone is sufficient, he ruled.

The appeals court disagreed.

"Courts have long recognized that eye-to-eye, face-to-face interaction is superior to videoconferencing," Swann wrote. He acknowledged the in-person consultation requirement could increase the cost, but said, "It does not practically deny a large portion of affected women their right to choose an abortion." He added Planned Parenthood provided no evidence it could not find enough doctors to meet the need.

Howard disagreed, saying there was testimony about the shortage of doctors trained to perform abortions. He also pointed out that state lawmakers just this year made it illegal for the University of Arizona College of Medicine to train doctors how to terminate pregnancies.

Swann also said lawmakers are entitled to allow only doctors to perform surgical abortions. He said even the U.S. Supreme Court has allowed such restrictions "to ensure the safety of the abortion procedure."

Different issues are at play in provisions of the law allowing medical professionals to refuse to participate in anything they believe is an abortion.

Doctors and hospitals have been able to opt out for years. But in 2009 legislators extended that right to pharmacists in response to the rise in use of the "morning-after" pill, essentially a high dose of hormones designed to prevent pregnancy which, while it does not require a prescription for adults, can be sold only at a pharmacy.

And RU-486, which everyone agrees does induce abortion, can only be dispensed by pharmacists with a doctor's prescription.

In upholding the right of medical personnel to opt out of any participation in an abortion, Swann said, "A woman's right to abortion or contraception does not compel a private person or entity to facilitate either. Whatever right a woman may have to chart her own medical course, it cannot compel a health-care provider to provide her chosen care."

Swann rejected arguments by Planned Parenthood that the "conscience" law would let medical professionals abandon patients who may be in emergency situations. He said doctors and others are still governed by requirements to provide adequate care to patients and can be sued for malpractice when they do not meet appropriate standards.

The ruling comes a month before another judge is to hear challenges by Planned Parenthood to this year's changes in abortion laws, including one extending all the requirements for a surgical abortion to a medical abortion using RU-486. While that includes mandates for equipment and personnel that must be present, the biggest change is that nurse practitioners will no longer be able to perform the procedure.

At a glance

The Arizona Court of Appeals Thursday upheld broad restrictions on abortions approved by the Legislature. In a 44-page ruling, the court said it is OK for the state to:

• Prohibit anyone but a licensed physician from surgically terminating a pregnancy.

• Require women to have a face-to-face meeting with the doctor who will perform the abortion at least 24 hours ahead of time.

• Allow medical professionals to refuse to perform abortions, provide certain contraceptives or dispense the "morning after" pill even to victims of rape.

• Mandate that parents' consent forms allowing a child to get an abortion must be notarized.

Copyright 2014 Arizona Daily Star. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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