SAN FRANCISCO (AP) — A three-judge panel of the 9th U.S. Circuit Court of Appeal 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 Kleinfeld, a reliably 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. Viability is generally considered to occur sometime after 23 weeks of pregnancy. The county's seminal Supreme Court 1973 abortion ruling, Roe v. Wade, said states cannot prohibit abortions outright prior to viability.
Bill Montgomery, the Maricopa County attorney defending the Arizona law, said the ban was enacted to protect women from undergoing a risky medical procedure. Montgomery said it's too medically risky for a woman to undergo an abortion at 20 weeks unless there's a medical emergency.
"People decide to have dangerous, foolishly dangerous, medical procedures all the time," Kleinfeld countered. He said removing prostates and other risky procedures that may not be medically necessary occur often and are not prohibited. He said such medical decisions are left up to patients and doctors without government intrusion.
Montgomery and Arizona Solicitor General David Cole fared no better with the other two judges on the panel, Marsha Berzon and Mary Schroeder, especially when Montgomery mistakenly mixed up their names during his arguments. Berzon was appointed to the appeals court by President Bill Clinton. President Jimmy Carter appointed Schroeder.
Berzon agreed with Kleinfeld that patients make risky medical decisions daily.
"Are there any statutes against cosmetic surgery?" she asked rhetorically.
The court gave no indication when it would rule.
Arizona's Republican-led 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.