By Ronnie Cohen
SAN FRANCISCO, Nov 5 (Reuters) - A federal appeals court
panel on Monday sharply questioned lawyers defending an Arizona
law that bans late-term abortions starting at 20 weeks of
pregnancy except in medical emergencies, which opponents say is
the toughest in the United States.
In San Francisco, a three-judge panel of the 9th U.S.
Circuit Court of Appeals heard the case after it blocked the
Republican-backed Arizona law from going into effect earlier
this year. Three abortion providers challenged the law in court.
The Arizona law bars doctors from performing abortions
starting at 20 weeks of pregnancy, except in medical
emergencies, and could send doctors who perform them to jail.
The American Civil Liberties Union, which is suing to stop
the law, said it was more extreme than similar laws elsewhere,
because the way Arizona measures gestation means it would bar
abortions two weeks earlier than in other states.
Those states also set the limit at 20 weeks but have
different ways to calculate gestation time. Arizona already bans
abortions at the point of viability, when a fetus might survive
outside the womb, generally at 23 to 24 weeks.
Judge Andrew Kleinfeld, a panel member appointed by former
President George H.W. Bush, repeatedly expressed concern that
the law might not afford women the opportunity to abort a fetus
with birth defects in cases where the defects are not apparent
until just before 20 weeks.
He also questioned the need to prohibit abortions at that
stage of the pregnancy, especially for fetuses bound to develop
"horrible birth defects."
"They're basically born into hell and then die," Kleinfeld
said. "I don't see how the courts could act before viability" of
the fetus.
"With due respect, that's the woman's problem," responded
David Cole, Arizona's solicitor general. "She should have made
that decision earlier."
William Montgomery, the attorney for Maricopa County in
Arizona who also defended the law before the appeals panel, said
new medical evidence showed a fetus has the capacity to feel
pain during an abortion at 20 weeks of development.
But Judge Marsha Siegel Berzon called that a "red herring"
in terms of the constitutional questions the law raises.
The three-judge panel did not say when it could make a final
ruling in the case. The U.S. Supreme Court legalized abortion
nationwide in 1973, but has allowed states to place restrictions
on the procedure from the time of viability unless the woman's
health was at risk.
In July, days before the 9th Circuit panel blocked the law
until it could fully consider the case, U.S. District Judge
James Teilborg ruled that the Arizona measure was consistent
with limits federal courts have allowed.
Talcott Camp, deputy director of the ACLU reproductive
freedom project, said the Arizona law's exception to allow
late-term abortion applies only in immediate emergencies if
delay can jeopardize a woman's life or seriously harm her
health.
"The medical emergency exception is truly, horrifically
narrow," she said in a phone interview. "This is a law that
allows her to get an abortion only when she is in emergency
crisis."
Aside from Arizona, seven U.S. states have put laws into
effect in the past two years banning late-term abortions, based
on hotly debated medical research suggesting a fetus feels pain
starting at 20 weeks of gestation, according to the ACLU.
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