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Ninth Circuit Panel Skeptical of Arizona Abortion Arguments

By Robyn Hagan Cain on November 07, 2012 | Last updated on March 21, 2019

Arizona Gov. Jan Brewer signed H.B. 2036 into law in April 2012. The bill restricts and criminalizes an abortion at 20 weeks of pregnancy or later, except in a "medical emergency." In August, the Ninth Circuit Court of Appeals enjoined enforcement of the bill.

The law's supporters claim that H.B. 2036 protects maternal health, because abortions at 20 weeks or beyond are more dangerous than procedures performed earlier in pregnancy. Opponents say that medical emergency exception to the law is too narrow, and could jeopardize a woman's life or seriously harm her health.

This week, a three-judge Ninth Circuit panel heard oral arguments in the enforcement appeal.

One of the more interesting exchanges during arguments -- between Judge Andrew Kleinfeld and Arizona Solicitor General David Cole -- suggests that Arizona's chances of winning the case are slim.

Judge Kleinfeld noted that some severe birth defects are not apparent until just before 20 week, and questioned whether the Arizona law would result in babies "basically born into hell" who would then die. Cole responded, "With due respect, that's the woman's problem .... She should have made that decision earlier," Thomson Reuters News and Insight reports.

(Judge Kleinfeld's concern is worth pointing out because he is the only Republican-appointee on the panel, and arguably "conservative." Judges Marsha Berzon and Mary Schroeder are also on the panel.)

During his argument, Maricopa County Attorney Bill Montgomery focused on evidence that a fetus can feel pain at 20 weeks, and argued that there is no constitutional right to abortions on demand. Judge Berzon called the pain evidence a "red herring" in a constitutional case.

The Ninth Circuit fast-tracked this appeal, but it's decision -- no matter when it's released -- will almost certainly be appealed to the Supreme Court.

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