Recognizing that prior to “viability” a fetus experiences pain during an abortion, and that the Arizona statute does not prohibit abortions
necessary for the health of pregnant women,
the court rejected a challenge to the law.
By Order released on July 30th, Federal District Judge James A. Teilborg declined to hold an Arizona statute limiting abortions during and following the twentieth week of pregnancy unconstitutional. State restrictions such as those imposed by Arizona, but after the beginning of the twenty-fourth week of pregnancy, had been said to be permissible in Roe v. Wade almost forty years ago. Although I consider the decision appropriate, consistent with Supreme Court precedent, including Roe v. Wade and its progeny, and “no big deal,” others contend that Abortion insanity prevails in Arizona and that Judge Strikes Unprecedented Blow Against Right to Choose. Thus far, I have seen no articles suggesting that he beats his wife or otherwise in furtherance of his war on women imprisons her in a dungeon to prevent her acquisition of women’s health services.
A purported challenge to the statute on an “as applied” basis was not considered because it does not go into effect until August 2nd; in the absence of further legal impediments it will go into effect then.
Roe v. Wade
As early as Roe v. Wade (1973), the Supreme Court held that during the first trimester of a pregnancy States can properly regulate access to abortions, including the facilities in which they may be performed and the personnel who may perform them, solely to ensure the health and safety of pregnant women. The Court then observed,
Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of the facility; and the like.
Following the first trimester legitimate State interests in fetal welfare increase and, with the onset of viability, States can prohibit abortions except those necessary for the life and health of pregnant women. In 1973, viability was thought to occur at around the twenty-fourth week of pregnancy, i.e., approximately at the end of the second trimester. As to this the Court stated in Roe v. Wade,
With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother. (Emphasis added.)
The Arizona statute
The Arizona statute relies on factors transcending viability, including concerns for the health of pregnant women as well as the ability of twenty week old fetuses to experience pain. Consistently with Roe v. Wade and its progeny, it does not prohibit abortions in cases of medical emergency, defined
as “a condition that, on the basis of the physician’s good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function.”
Except in a Medical Emergency, a person shall not knowingly perform, induce or attempt to perform or induce an abortion on a pregnant woman if the probable gestational age of her unborn child has been determined to be at least twenty weeks.
The statute continues, “A person who knowingly violates this section commits a class 1 misdemeanor” and “[a] physician who knowingly violates this section commits an act of unprofessional conduct and is subject to license suspension or revocation pursuant to title 32, chapter 13 or 17.”
Findings of the Arizona legislature in enacting the statute included the following:
(1) that abortion “can cause serious both short-term and long-term physical and psychological complications for women;” (2) that abortion “has a higher medical risk when the procedure is performed later in pregnancy. Compared to an abortion at eight weeks of gestation or earlier, the relative risk increases exponentially at higher gestations;” (3) “[t]he incidence of major complications is highest after twenty weeks of gestation;”(4) “[t]he risk of death associated with abortion increases with the length of pregnancy, from one death for every one million abortions at or before eight weeks gestation to one per 29,000 abortions at sixteen to twenty weeks and one per 11,000 abortions at twenty-one or more weeks . . . After the first trimester, the risk of hemorrhage from an abortion, in particular, is greater, and the resultant complications may require a hysterectomy, other reparative surgery or a blood transfusion;” (5) “[t]here is substantial and well-documented medical evidence that an unborn child by at least twenty weeks of gestation has the capacity to feel pain during an abortion;” and (6) that the State of Arizona has a legitimate concern in protecting the public’s health and safety, including the health of women who undergo abortions. H.B. 2036, 50th Leg., 2d Reg. Sess. § 9(A)(1-7) (Ariz. 2012).
As a result of these findings, the Arizona Legislature stated that it promulgated H.B. 2036 “based on the documented risks to women’s health and the strong medical evidence that unborn children feel pain during an abortion at [20 weeks] gestational age.” H.B. 2036, 50th Leg., 2d Reg. Sess. § 9(B)(1) (Ariz. 2012).
In Roe v. Wade, the Supreme Court had also noted medical evidence that while the incidence of harm to pregnant women due to abortion is less than that due to childbirth during the first trimester, the danger to them from an abortion increases thereafter.
From a legal perspective, the most interesting aspect of the Arizona decision is that it deals with the period between the twentieth and twenty-fourth weeks of pregnancy. Despite the lack of viability — ability to survive outside the womb — there were adequately supported clinical findings that at or even before twenty weeks a fetus experiences pain during an abortion. The most common forms of late-term abortions are described graphically in the decision, quoting liberally from the Supreme Court’s decision in Gonzales v. Carhart (2007). Uncommon squeamishness is probably unnecessary to experience empathy with a fetus undergoing such an abortion.
It is undisputed in the Record before the Court that the two procedures described in Gonzalez are the non-emergency procedures that would be used to perform an abortion past 20 weeks gestational age. The first, a D&E, is described in Gonzales as follows:
Of the remaining abortions that take place each year, most occur in the second trimester. The surgical procedure referred to as ‘dilation and evacuation’ or ‘D & E’ is the usual abortion method in this trimester. Although individual techniques for performing D & E differ, the general steps are the same.
A doctor must first dilate the cervix at least to the extent needed to insert surgical instruments into the uterus and to maneuver them to evacuate the fetus. The steps taken to cause dilation differ by physician and gestational age of the fetus. A doctor often begins the dilation process by inserting osmotic dilators, such as laminaria (sticks of seaweed), into the cervix. The dilators can be used in combination with drugs, such as misoprostol, that increase dilation. The resulting amount of dilation is not uniform, and a doctor does not know in advance how an individual patient will respond. In general the longer dilators remain in the cervix, the more it will dilate. Yet the length of time doctors employ osmotic dilators varies. Some may keep dilators in the cervix for two days, while others use dilators for a day or less.
After sufficient dilation the surgical operation can commence. The woman is placed under general anesthesia or conscious sedation. The doctor, often guided by ultrasound, inserts grasping forceps through the woman’s cervix and into the uterus to grab the fetus. The doctor grips a fetal part with the forceps and pulls it back through the cervix and vagina, continuing to pull even after meeting resistance from the cervix. The friction causes the fetus to tear apart. For example, a leg might be ripped off the fetus as it is pulled through the cervix and out of the woman. The process of evacuating the fetus piece by piece continues until it has been completely removed. A doctor may make 10 to 15 passes with the forceps to evacuate the fetus in its entirety, though sometimes removal is completed with fewer passes. Once the fetus has been evacuated, the placenta and any remaining fetal material are suctioned or scraped out of the uterus. The doctor examines the different parts to ensure the entire fetal body has been removed.
Some doctors, especially later in the second trimester, may kill the fetus a day or two before performing the surgical evacuation. They inject digoxin or potassium chloride into the fetus, the umbilical cord, or the amniotic fluid. Fetal demise may cause contractions and make greater dilation possible. Once dead, moreover, the fetus’ body will soften, and its removal will be easier. Other doctors refrain from injecting chemical agents, believing it adds risk with little or no medical benefit. [Internal citations omitted, emphasis added.]
The second, less-commonly used, procedure is a medical induction, where “[t]he doctor medicates the woman to induce labor, and contractions occur to deliver the fetus.” Id. at 140. In an induction procedure, the fetus is injected with a medication that induces a heart attack. See Carhart v. Ashcroft, 331 F.Supp.2d 805, 875 (D. Neb. 2004) (describing induction by intracardiac injection); Planned Parenthood Federation of America v. 320 F.Supp.2d 957, 960 (N.D. 2004) (explaining that induction is also known as a “medical abortion” where “drugs are administered to abort the pregnancy”). (Emphasis added.)
As to the ability of a pre-viability fetus to experience pain, Judge Teilborg observed that
the capacity to feel pain during an abortion [arises] by at least twenty weeks gestational age. Defendants presented uncontradicted and credible evidence to the Court that supports this determination. Namely, the Court finds that, by 7 weeks gestational age, pain sensors develop in the face of the unborn child and, by 20 weeks, sensory receptors develop all over the child’s body and the children have a full complement of pain receptors.
This decision is a relatively minor step in acknowledging that State recognition of fetal pain is decisionally significant in abortion cases involving not-yet viable fetuses. However, these observations may portend future evolutionary changes in judicial interpretation:
The parties appear to agree that the fetus most commonly attains viability at 23-24 weeks gestational age. Compare Doc. 2, Exhibit 1 at ¶ 15 (“It is commonly accepted . . . that a normally developing fetus will attain viability at approximately 24 weeks”) with Doc. 25-1, Exhibit 2 at ¶ 17 (“The number of children that are born and survive at 23-28 weeks gestation is common enough now that the term ‘Micro-preemie’ has been coined to describe them and an additional body of neonatal science is focused upon them. As medical science pushes the frontier of fetal ‘viability’ to 23 weeks and perhaps earlier with the advent of artificial wombs and placental support, there is a possibility that a definition of ‘viability’ based upon gestational age will soon be irrelevant.”). As such, the Court focuses on this 3-4 week time frame (while recognizing that this time frame may be even shorter in the future as technology advances to make viability even earlier) and examines H.B. 2036 from that perspective. (Emphasis added.)
Eventually, late term abortions may be defined more expansively than at present and States desiring to do so may be able prohibit them (except when medically necessary for the life and health of the pregnant female). There may then be fewer scenes such as this:
First published at Dan Miller’s Blog.