A federal judge in Phoenix heard testimony Wednesday on a legal challenge to a new Arizona law, set to go into effect August 2nd, that bans abortions after 20 weeks. Capitol Media Services reporter Howard Fischer describes what was said during and after the hearing.
Ted Simons: Good evening, and welcome to "Arizona Horizon." I'm Ted Simons. A federal judge today heard testimony in a lawsuit challenging a new state law that bans abortions after 20 weeks. Howard Fischer of capitol media services was at today's hearing and he joins us now. Thanks for being here. We appreciate this. Describe the lawsuit. What's going on here?
Howard Fischer: The Arizona legislature passed a bill that says after 20 weeks of gestations, abortion can only be conducted to save the life of the mother or a major health issue. Arizona law up until now has been you can have an abortion at will up to the point of viability. That's based on the 1973 roe versus wade decision and subsequent rulings. Viability is 22-24 weeks. When the law was passed, and it's scheduled to take effect a week from today, the ACLU sued and said, you cannot restrict previability abortions. They were in court today to say, your honor, it will take a while to sort this out, we'd like an injunction keeping the law from taking everything.
Ted Simons: They're saying basically states can regulate, states can't ban.
Howard Fischer: Exactly. That's the issue. The courts have said states can issue regulations. We have informed consent. We have 24-hour waiting periods. The Supreme Court has upheld that, but to date the Supreme Court has said previability, the state has no rule in saying no.
Ted Simons: What is the argument on the other side?
Howard Fischer: The argument is A, that there are shoes beyond viability. For example, there was evidence presented to lawmakers that an abortion at 20 weeks is more hazardous to the health of the mother than a fetus at 20 weeks can feel pain. And based on that lawmakers said we are entitled to go in and place a ban despite what the Supreme Court says. Bill Montgomery who argued it said, look, viability should no longer be the standard, and he concedes this case could end up being a test case for all of those cases going back to roe versus wade.
Ted Simons: He not only concedes, that it sounds like he wants that to happen.
Howard Fischer: Exactly. I think bill Montgomery's belief has always been life begins at conception, and that's a philosophical, religious belief. But for the moment at least as far as the courts are concerned it is not a legal belief that the rights of the woman until viability trump the fetus inside her. I think he'd like to take this up to the Supreme Court. He'd like to question the whole question of viability. Not only in terms of going back to 20 weeks, but he even said that the way he reads it, that the court should defer to the legislature. And if the adds legislature wants to declare abortion at the point of conception is illegal, they should be able to do that.
Ted Simons: How much of what he was -- the viability of the viability standard, how much was raised at the hearing, how much was raised afterwards when the county attorney spoke to the press and spoke out loud and basically had a lot of interesting things to say?
Howard Fischer: The viability issue came up during the hearing. Even the judge point out when roe versus wade was decided viability was 28 weeks. When casey versus Pennsylvania was decided, viability was 25. Now it's 22 to 24 weeks and the judge said, how can we determine what's viability? But Janet Krepps from the center for reproductive rights said it doesn't matter what it might be tomorrow, you have to decide based on the facts on the ground and the facts on the ground is as of today viability does not exist at 20 weeks. It was afterwards that we got into the issue of how far down this path do we want to go, and where bill Montgomery said legislatures as representatives of the people are entitled to decide viability is not the issue, and the issue is the human life within the woman and that is deserving of state protection. Even if the woman doesn't want it.
Ted Simons: That's an interesting concept, but go back to the other side, saying that's not what the Supreme Court has ruled. But again, he says let's take it back there, let's reconsider.
Howard Fischer: Exactly. And this -- there will be a test case at some point on roe versus wade, whether it will be this, whether it's some abortion funding issue, there have been a lot of the justices who suggest the whole idea of viability, we're talking TRiMESTERS, concepts have disappeared, as you get to the point where you can have a fetus at 15 weeks outside the mother, or earlier, or test tube babies, how does that affect the law and how does that affect the rights of the woman?
Ted Simons: OK, law is scheduled to take effect a week from tonight?
Howard Fischer: Yes.
Ted Simons: Basically the judge has until then to either issue an injunction to say, let's think about this, let's stop it now, but think about it, or not do anything and the law goes into effect.
Howard Fischer: Exactly. If the law takes effect, there are going to be a certain number of women, in aren't a lot of post-20 week abortions in Arizona, who will be denied that right in as. Which gives them the choice of either disobeying the law with the consent of their doctors or going somewhere elsewhere this isn't the law.
Ted Simons: Good stuff. Good to have you here. Thanks for joining us.
Howard Fischer: You're welcome.
Howard Fischer:Reporter, Capitol Media Services;