PHOENIX (CN) - The 9th Circuit questioned the language Arizona legislators used to outlaw abortions in instances where the fetus has gestated for at least 20 weeks.
Known as the Mother's Health and Safety Act, the Arizona law bans abortions at or after 20 weeks, "except in cases of a medical emergency, based on the documented risks to women's health and the strong medical evidence that unborn children feel pain during an abortion at that gestational age."
After Arizona Gov. Jan Brewer signed the act into law in April, three doctors who perform the procedures in question filed suit in Phoenix. They say the ban "unconstitutionally endangers women's health" with its "narrowly defined medical emergency exception."
At a hearing before a three-judge panel of the court on Monday, Judge Andrew Kleinfeld spoke of his concern that a woman may discover a birth defect at 20 weeks and would be unable to receive an abortion.
"Sometimes you can't discover a birth defect until 20 weeks, and sometimes the fetus will be born with a horrible birth defect, which means it's born into hell, gets several months or years of operations and pain, and dies as a baby," Kleinfeld said.
Janet Crepps, an attorney for three doctor-plaintiffs, questioned the 20-week designation.
"The state attempts to justify the 20-week line on the basis of fetal pain and increased risks to maternal health, but neither of those interests are particularly pegged at the 20 weeks and neither of those interests are sufficient to overcome a woman's liberty interest prior to viability," Crepps said.
Roe v. Wade found that states cannot prohibit abortions before viability, she added.
"The Supreme Court has been very, very clear that the state cannot prohibit any individual woman from obtaining an abortion prior to viability, and that rule goes throughout the period of time of pregnancy up to the point of viability, regardless of when within that time the woman seeks an abortion and regardless of what her reasons are," Crepps said.
Maricopa County Attorney Bill Montgomery, arguing for the state, told the panel that the law aims to protect women from a dangerous medical procedure.
He engaged in a testy exchange with Judge Marsha Berzon after confusing her with Judge Mary Schroeder.
Trying to pin down the attorney, Berzon said: "It's not like people are dying every day from this."
Montgomery replied: "I don't think we have any other procedure like abortion where doctors would be willing to go forward and perform it in light of this known risk."
Berzon countered: "What is the known risk? Has anyone died in Arizona from an abortion in many years?"
Kleinfeld seemed to echo Berzon's position in noting that people choose to have dangerous medical procedures all the time.
"Sometimes they have to shop around for a doctor because it's such a stupid idea, but they still have to right to do it," Kleinfeld said. "And they do it; people get so much unnecessary surgery that's dangerous."
Arizona Solicitor General David Cole, also speaking on behalf of Arizona, claims that "it's extremely rare" that a woman loses the opportunity to have an abortion because she's past 20 weeks of gestation.
The lawyer was unsympathetic when Kleinfeld speculated about a woman who may not discover until week 21 that her fetus has a birth defect, and desire then to have an abortion.
"With due respect, that's the woman's problem," Cole responded. "She should have made the decision at an earlier time."
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