Is it a ban or restriction? Arizona argues abortion is of legitimate interest to the state

By Howard Fischer | Capitol Media Services 

The question of whether Arizona gets to enforce a new restriction on the right to abortion could turn on whether a federal judge considers it a ban or a restriction.

That distinction is critical as Judge Douglas Rayes considers a bid by abortion rights advocates to block a law set to take effect Sept. 29, which makes it a crime for medical providers to terminate a fetus if they know that the reason the woman is seeking the procedure solely is a genetic defect, even if the fetus is not viable outside the womb. The law carries a penalty of up to a year in prison for doctors and others; there is no penalty on the woman.

During a hearing Wednesday, Rayes pointed out that Roe v. Wade, the historic 1973 ruling that legalized the right to abortion, does not say that women are entitled to terminate a pregnancy at any time or for any reason. And he said the high court has upheld restrictions on the procedure.

Emily Nestler, an attorney for the Center for Reproductive Rights, told the judge the state can impose certain restrictions on how and where the procedure is performed.

“But it cannot completely preclude the choice to terminate a pregnancy altogether,” she said.

“In this case, the law eliminates the right to an abortion for patients when they have a fetal diagnosis,” Nestler continued. “Under those circumstances there is no (state) interest that can outweigh the elimination of the right.”

But she told Rayes that even if he dubs the law a “regulation,” it is irrelevant. She said federal courts have struck down other abortion laws because they place an “undue burden” on women and place a “substantial obstacle to an abortion before the fetus attains viability.”

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