PHOENIX - State lawmakers are entitled to ban abortions at 20 weeks - or even at the point of conception - Maricopa County Attorney Bill Montgomery asserted Wednesday.
Montgomery acknowledged at a hearing in federal court that U.S. Supreme Court previously ruled states cannot outlaw the right of a woman to terminate a pregnancy before a fetus is viable, which he agreed is currently considered to be in the 22-24 week range.
That is significant because Montgomery is defending a law, set to take effect Aug. 2, that would ban abortions 20 weeks, except in narrow circumstances to save the life or health of the mother.
Montgomery told U.S. District Judge James Teilborg the decision of elected legislators to set the ban at 20 weeks is entitled to deference from the courts. He said lawmakers had evidence not only that a fetus can feel pain at that point but that abortions are more risky.
Montgomery said he sees the challenge to this law as a possible starting point for forcing the Supreme Court to review its prior rulings on when states can ban the procedure.
Montgomery, however, did not stop there.
After the hearing, he said he believes the Arizona Legislature could legally ban all elective abortions. He said this case might force the Supreme Court to revisit, and possibly overturn, its historic 1973 Roe v. Wade decision that women have a right to terminate a pregnancy for any reason, at least prior to viability.
"It certainly does provide an avenue for the court to fully address just how viable is a viability standard," he said.
Montgomery cited a 2007 Supreme Court ruling upholding a federal ban on partial-birth abortions. He said the justices said lawmakers are entitled to "due deference" in making decisions about abortion.
"I would recognize the inherent human dignity in a life at the moment of conception," Montgomery said, saying the procedure should be outlawed "unless it impacted the health and welfare of the mother."
"I would not define that as an abortion," Montgomery explained. "I would define that as a procedure that was intended to deal with intended risks and challenges that woman faced." And he said each state should make that decision.
Janet Crepps, an attorney with the Center for Reproductive Rights, said Montgomery is wrong about the law.
Crepps, who represents one of the three doctors who sued trying to overturn the law, said the Supreme Court has allowed states to impose restrictions on how abortions can be conducted and what information must be made available to women.
But she said it remains the law of the land that any ban on a pre-viability abortion is beyond the ability of state or federal lawmakers to enact. And she said that makes the Arizona law unconstitutional.
The new law takes effect on Aug. 2. The court battle, including appeals, could take years. So Teilborg is being asked to block the state from enforcing the law until its legality is decided.
One issue that seemed to concern the judge is the definition of viability. He said that has been a changing standard since the U.S. Supreme Court issued its first ruling.
"In 1973, viability was generally considered at 28 weeks," he told Crepps. When the high court reaffirmed the right to an abortion in 1982, Teilborg said, the line had moved to the 24-25 week range.
"The trend tends to be moving earlier rather than later in viability," a trend he said, that could make 20 weeks "on the border of viability."
Crepps argued some future medical standard is legally irrelevant, and the judge must decide the issue based on the current state of science.
And she said courts are not in the best position to decide viability. "It has to be a decision left to physicians on a case-by-case basis," she said.
Teilborg also did not rule Wednesday on Montgomery's motion to remove Pima County Attorney Barbara LaWall as a defendant in the case.
Montgomery said LaWall has questioned the constitutional legitimacy of the law and should probably be enjoined until a final resolution of its legality.
But Deputy Pima County Attorney Paula Perrera said her boss has not concluded that the statute is definitely illegal. And she said if LaWall is not part of the case, then any injunction Teilborg issues blocking the law would not be effective in Pima County.
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