A federal appellate panel struck down Arizona's abortion law Tuesday, saying it was unconstitutional "under a long line of invariant Supreme Court precedents" that guarantee a woman's right to end a pregnancy any time before a fetus is deemed viable outside her womb - generally at 24 weeks.
The law, enacted in April 2012 despite vociferous protest by women's and civil rights groups, made abortions illegal if performed 20 weeks after a woman's last menstrual period, or roughly 18 weeks after fertilization, even if the woman learned that the fetus had no chance of surviving after birth. At 18 weeks, many fetal abnormalities can be detected through sonograms.
In its opinion, the panel of three judges assigned to the 9th U.S. Circuit Court of Appeals in San Francisco wrote that a fetus' viability "varies from pregnancy to pregnancy," which should be determined by doctors, not legislators.
"While the state may regulate the model and manner of abortion prior to fetal viability, it may not proscribe a woman from electing abortion, nor may it impose an undue burden on her choice through regulation," wrote Judge Marsha S. Berzon, the opinion's author.
The American Civil Liberties Union and other organizations challenged the law in federal court last year on behalf of three physicians and their patients. On Tuesday, Talcott Camp, deputy director of the ACLU's reproductive freedom project, welcomed the court's opinion. "Politicians do not have the right to interfere in serious and personal decisions that should only be made by a woman with the help of her family and her doctor," he said.
In arguments Nov. 5, the defendants - the state's attorney general, Tom Horne; the Maricopa County attorney, Bill Montgomery; the Pima County attorney, Barbara LaWall; and the Arizona Medical Board - said the law's main purpose was to protect a mother's health and shield fetuses from pain.
Montgomery, in a statement, said he would seek review from the Supreme Court, "given the compelling and important interest Arizona has in protecting the health and well-being of expectant mothers from the dangers of abortions after 20 weeks and to protect children in the womb from needless and horrific imposition of pain."
Arizona is one of 10 states to pass an abortion ban at 20 weeks, based on theory, rejected by many medical groups, that a fetus feels pain then. Many of those bans have not yet been challenged; Dan Pochoda, legal director of Arizona's chapter of the ACLU, called the ruling "the strongest and most definitive" so far on recent laws placing restrictive limits on abortions.
The decision applies to Arizona and the eight other Western states under the 9th Circuit's jurisdiction, including Idaho, where similar legislation had already been deemed unconstitutional.
North Dakota, which falls under the authority of a different appellate court, passed the country's most far-reaching abortion law in March, banning women from terminating a pregnancy once a fetal heartbeat is detectable, which can be as early as six weeks into a pregnancy. A ban at 12 weeks in Arkansas has been blocked by court because it violates the viability rule.