A federal appeals court panel on Monday considered Arizona’s stringent abortion ban, which has the distinction of being the most restrictive in the nation because it criminalizes almost all abortions after just 20 weeks. Arizona already bans abortion after viability — which is generally considered to occur around week 23 or 24 of pregnancy — but the bill in question would go even further, redefining gestation in a way that would ban abortion at least two weeks before other states do, potentially as early as week 18.
The judges on the panel questioned HB 2036’s potential to harm the women who do not realize the medical risks of their pregnancies until after the arbitrary cut-off, when they are no longer permitted to seek abortions. But Arizona officials brushed aside those concerns, saying that those medical emergencies are “the woman’s problem”:
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.”
However, in some cases, women cannot actually make that decision earlier because it is too difficult to detect fetal abnormalities before the medically accepted point of viability. And the American Civil Liberties Union, which is suing Arizona to block HB 2036 from going into effect, told Reuters that Arizona’s ban has a “truly, horrifically narrow” medical exception that will prevent many women from getting abortions even when it is medically necessary for them to end a pregnancy. Even though about 100 pregnancies are terminated after 20 weeks in Arizona each year, the law would criminally prosecute the doctors who perform abortion services after the cut-off.
The three-judge panel has yet to make a final ruling. A federal judge upheld HB 2036 at the end of July, but a 9th Circuit Court of Appeals panel temporarily blocked the law from going into effect just a few days later so that the court could more fully consider the case.