Maricopa County Attorney Bill Montgomery wants the U.S. Supreme Court to reconsider the limits it set in Roe vs. Wade, its 1973 landmark opinion on abortion, in light of a blocked Arizona law and what he says is evolving science about pregnancy and abortion.
On Friday, Montgomery filed a petition with the high court to challenge a federal appeals-court ruling that Arizona’s law banning abortions after the 20th week of pregnancy is unconstitutional.
Montgomery argued that the premise of the Arizona law is that unborn fetuses are capable of feeling pain as early as 16 to 20 weeks and that women are more susceptible to health problems as a consequence of late-term abortions.
Roe vs. Wade makes it difficult for states to ban abortion after about 24 weeks, that is, after the second trimester.
“We’re only asking them to reconsider the part of Roe that says at what point the state can cut off abortions, based on what we now know,” Montgomery said in an interview Friday.
The law, House Bill 2036, The Mother’s Health and Safety Act, was signed into law by Gov. Jan Brewer. But before the law could go into effect, the American Civil Liberties Union and the Center for Reproductive Rights filed a lawsuit against it on behalf of three Arizona obstetrician-gynecologists.
Abortions are generally permitted until a fetus is determined to be “viable,” meaning it can survive outside the womb, with or without medical support.
Physicians agree that viability occurs between 22 and 24 weeks of gestation. Using that benchmark, Roe vs. Wade legalized abortion, stating that medical decisions during the first trimester — the first 12 weeks of gestation — could be made by a woman’s doctor. After that, states could regulate abortions during the second trimester only on issues relating to the mother’s health, and ban them altogether in the third trimester, after roughly 24 weeks.
The Arizona law seeks to push back the last possible date, banning abortions past 20 weeks, even in situations where the doctor discovers that the fetus has a fatal defect.
When the Arizona law was first challenged in federal court, a U.S. District Court judge ruled that it was a regulation, not a ban, and therefore constitutional.
The law’s opponents took the case to the 9th U.S. Circuit Court of Appeals, which imposed an injunction on the law. Montgomery argued on the law’s behalf in front of the 9th Circuit in San Francisco last November. In May, the three-judge panel ruled against him, stating that the Arizona law is clearly in conflict with Roe vs. Wade.
In the much anticipated petition, Montgomery asked the U.S. Supreme Court to revisit the issue. His petition noted that the District Court judge felt that the concept of viability should change as medical science changes. In the petition, Montgomery repeated the assertion that scientific evidence of fetal pain could make the court reconsider a ruling made on the science available in 1973.
Given the advance in neonatal science and studies on the long-term effects of late-term abortions on women, the court should reconsider, Montgomery said.
Montgomery also made an argument that the law protects the integrity of doctors who would be inflicting pain on unborn fetuses.
“He’s just making the same argument that the 9th Circuit said it didn’t even need to consider the merits of,” said Kelly Flood, a senior staff attorney for the ACLU of Arizona. “This is a pre-viability ban, and that’s unconstitutional.”
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