The three-judge panel appeared skeptical of Maricopa County Attorney Bill Montgomery’s legal justifications for the bill. Montgomery argued that the “new medical evidence” of an increase medical risk related to abortions performed post-20 weeks coupled with “other new evidence” that a fetus can feel pain at that point empowers Arizona lawmakers to ban the procedure.
Montgomery’s go-to response when pressed by the judges on how the state could defend a law that banned abortions pre-viability and in conflict with decades of Supreme Court precedent was that a woman’s right to chose abortion does not include a right to “unsafe abortion.” It’s a legal argument that depends on the federal courts accepting the paternalism embedded in it—that is, women, unlike men, need excessive state protection from making bad medical decisions.
At least one judge on the panel wasn’t buying that line of argument. Judge Andrew Kleinfeld said the relative risks do not matter. “People decide to have dangerous, even foolishly dangerous medical procedures done on themselves all the time,” he told Montgomery during oral arguments. “Sometimes they have to shop around for a doctor because it’s such a stupid idea,” Kleinfeld continued. “But they still have a right to do it.”
When arguing that women needed more protection than men from making foolhardy medical decisions didn’t appear to be working, Montgomery turned his attention to persuading the judges based on the “new medical evidence” that purports to support the ban, piggybacking the Arizona law to the successful federal ban on “partial-birth abortions”. Again, the justices appeared skeptical. Judge Marsha Berzon brushed aside Montgomery’s arguments about new evidence. saying the Supreme Court in Gonzales v. Carhart, the case that upheld the constitutionality of the federal partial birth abortion ban “perfectly understood” that the later an abortion is performed, the greater the risk to the mother. “Ordinarily, one gives people the right to make medical decisions, including the risk to themselves, as long as they’re told what the risks are,” she said. In this case, Berzon argued why should that be any different?
Montgomery wasn’t the only attorney defending the bill on behalf of Arizona. State Solicitor General David Cole, also defended the law, but focused his arguments on why, despite decades of precedent to the contrary, doctors should not have standing to challenge the Arizona law. He said only a woman denied an abortion at or after 20 weeks of pregnancy has standing, not the two doctors even with their statements that they already perform such procedures.
These arguments appeared to do no better with the justices than Montgomery’s. When asked outright by Judge Kleinfeld about how exactly a woman 20 weeks pregnant was supposed to bring a legal challenge and get a ruling granting her permission to terminate her pregnancy in the few weeks before viability Cole’s answer summed up perfectly what the fight over restricting abortion access in Arizona turns on. “With all due respect, that’s the woman’s problem,” Cole responded. “She could have made that decision at an earlier time.”
The state of Arizona was not unanimous in its defense of the bill. Pima County Attorney Barbara LaWall, in her own legal brief, sided with the doctors who are challenging the law as unconstitutional.
While oral arguments are never a clean indication of how judges will ultimately decide an issue, in this case there was enough skepticism expressed by the justices to believe they will uphold the lower court’s ruling blocking enforcement. And Montgomery has been clear through his defense of the bill that he all but expects defeat at the appellate level but that he’s hopeful that the conservative justices of the Supreme Court will jump on the chance to use this challenge to revisit, and overturn, Roe v. Wade.
The judges didn’t indicate when they would issue their ruling, but it’s pretty clear this case is far from over. Montgomery only needs four of the nine justices to grant a petition to review a Ninth Circuit ruling. When that decision does come, and assuming it does not go in Arizona’s favor, we will have a chance to see if Montgomery’s strategy ultimately pays off.