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July 27, 2012 3:43 PM The Big Test Begins For Abortion Rights

By Ed Kilgore

I somehow missed Irin Carmon’s report in Salon last week about the legal challenge underway to Arizona’s new “fetal pain” law, but it’s a very big deal, and now some ominous signs are emanating from the federal judge hearing the case.

There had been a lot of buzz before that abortion rights advocates were fearful of challenging the rash of state laws banning abortions after 20 weeks (or so) because of doubts about the current Supreme Court, and particularly Justice Kennedy, who was the swing vote in the 2005 decision to uphold a federal “partial-birth abortion” ban. Here’s Carmon’s explanation of why the Arizona law is drawing the challenge:

There are lots of reasons why this lawsuit is the first of its kind. Janet Crepps, lead counsel on the case, noted in an interview that Arizona’s law, which is scheduled to go into effect on Aug. 2, bans abortions roughly two weeks earlier than other states with such laws on the books, because it starts counting from the last menstrual period, whereas other states start counting two weeks after it to estimate fertilization.
It also has a more draconian health exception. As Crepps points out, “Not only does the woman have to face a serious threat, it has to have gotten to the point where she needs emergency medical treatment.” Finally, unlike several other states with 20-week bans, Arizona has doctors who provide abortions after 20 weeks and are willing to deal with the scrutiny and harassment that go along with putting their names on a lawsuit.

So abortion rights advocates have taken the plunge. And as Carmon now reports, the district court judge hearing the suit seems to be in a revolutionary mood:

[T]his is a pretty open-and-shut case when it comes to the precedent: In the last abortion case ruled on by the Supreme Court, in 2007, Kennedy reiterated that a law is unconstitutional “if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Twenty weeks is well before viability. But, according to a New York Times editorial, that’s not the framework used by Judge James Teilborg of the United States District Court in Phoenix, speaking to lead attorney Janet Crepps:
“[H]e lectured her for what he suggested, wrongly, was a lack of compassion for the unborn. He said he had read the plaintiffs’ affidavits and had found that they ‘reflect profound compassion and concern for their patients, the women, and presumably the fathers.’ However, he added, ‘I didn’t find anywhere in those affidavits any expression of concern by the plaintiffs’ positions for the unborn child — or even a hint of concern on their part.
“‘Given that silence on that part,’ the judge said, ‘and given the silence in your own presentation, doesn’t that underscore the legitimacy of the state’s regulatory action out of concern for the unborn child?’”
This is not the compassion Olympics. This is the federal judiciary, which held in Roe that while the state has “an important and legitimate interest in potential life, the ‘compelling’ point is at viability.” At least Teilborg rejected a motion to appoint a lawyer to argue the rights of the unborn. This week, that looks like judicial restraint.

An AP story on the case suggests that Teilborg may be buying the state’s argument that medical advances have shifted the point of fetal viability forward—a claim anti-choicers have been making for decades.

In any event, this is just the first stage of a constitutional challenge that may eventually make its way to the Supreme Court. And as everyone on both sides of the barricades understands, we’ll soon have a major indication of the future direction of the Court on abortion rights and other constitutional issues on which current Justices are closely divided—on Election Day in November.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

Comments

  • Crissa on July 28, 2012 1:39 AM:

    Sounds like the judge wants to make up his own law, rather than deal with what's in the constitution already.