Challenging Arizona's New Abortion Ban

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Slate's Emily Bazelon looks at the legal challenge to Arizona's new law banning abortion after 20 weeks of pregnancy:

Arizona bans abortion after 20 weeks except in the event of a “medical emergency,” defined narrowly as a condition that necessitates “immediate abortion of the pregnancy to avoid death” or “substantial and irreversible impairment of a major bodily function.” Doctors who violate the law can go to prison for up to six months, lose their medical licenses, and be sued by their patients and the fathers and maternal grandparents of the “unborn child.” In other words, the state means business.
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And so we are back in the sad world of late-term abortions. Why would anyone choose to end a pregnancy in the middle of her fifth month? First of all, let’s be clear, the percentage of abortions performed at this stage is low: 1.9 percent between 18 and 20 weeks, and another 1.3 percent after 21 weeks. In national numbers, that’s about 11,600 and about 8,000, respectively. There must be women in this group who are in denial, even irresponsibly so. But there are many women who grieve deeply over terminating at a later stage. One of the doctors challenging the law said that 70 percent of his patients who choose abortion at 20 weeks do so because of “serious or lethal fetal abnormality.” These women often very much want to be pregnant and to have a baby, and they find themselves ending a life instead of beginning one only because the alternative is even bleaker. Arizona seems unconcerned about limiting the choices of all women so that it can curb the behavior of a few.

The doctors who are challenging Arizona’s law, through their lawyers, lay out the birth defects that lead women to give up wanted pregnancies: malformation or absence of the brain or kidneys, severe heart defects, or excess fluid that leads to serious brain damage. When women think they are experiencing a normal pregnancy, structural abnormalities like these—as opposed to chromosomal problems—often aren’t detected until the standard 18-week ultrasound. At that point, there are often follow-up appointments and consultations to be scheduled, not to mention heart-wrenching thinking to be done. Do we really want a state to take it upon itself to rush women through this process, against the better judgment of their doctors? “By the time a diagnosis is confirmed by a specialist capable of diagnosing these anomalies, the pregnancy has often progressed beyond 20 weeks,” the American College of Obstetrics and Gynecologists explains in its brief supporting the doctors who have challenged Arizona’s law. “Perhaps most importantly, however, given that almost 60 percent of Arizona women are obese, there are many patients in whom a detailed ultrasound examination will not reveal structural anomalies in the fetus until those anomalies become more pronounced, and thus visible, later in the pregnancy—often after 20 weeks.”

Then there are the health crises mothers confront mid-pregnancy. ACOG provides an upsetting list, including heart conditions, cancer, lupus, and diabetes. The problem with allowing for abortions only to avert death or the irreversible impairment of a major bodily function, ACOG explains, is that “to require a physician to postpone care until that point is to put the patient’s health in serious jeopardy and to compromise the physician’s ethical duty to the patient.”

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