Arizona’s Ban at 20 Weeks Shows Country’s Shift on Abortion Law

Arizona's 20-Week Abortion Ban May Serve as Supreme Court Test
Arizona has become a laboratory for Republican priorities, from gun rights to immigration to Medicaid, since Jan Brewer replaced Governor Janet Napolitano, a Democrat. Photographer: Saul Loeb/AFP via Getty Images

Jennifer Hercegovac and her husband picked out a name, set up a nursery and sold her business so she could be a stay-at-home mother. Then, when she was 18 weeks pregnant, an ultrasound detected fetal heart defects.

At first, she thought her son could still grow up to play football after surgeries. Further tests last month, at 22 weeks, detected DiGeorge Syndrome, a chromosome disorder that with the heart defects made the survival of her fetus beyond a few months unlikely, she said. She scheduled an abortion the next day -- an option other women in Arizona won’t have under a law set to go into effect next week.

“You are attached to the baby, you love the baby, but to give birth to a baby that you know is going to suffer and pass away?” Hercegovac, 38, of New River, said in a telephone interview as her sons, ages 2 and 3, drummed on cooking pots in the background. “This seemed more humane.”

Arizona is one of nine states in the past two years to ban abortions after the 20th week of pregnancy -- around the time women commonly get ultrasounds to screen for fetal anomalies. Abortion-rights advocates were in federal court in Phoenix yesterday seeking a preliminary injunction against the law.

In less than a decade, Arizona has gone from a state that abortion-rights groups viewed as friendly to one that’s hailed by abortion foes as a national model in their fight to protect the unborn. The shift is emblematic of the nation’s, as lawmakers push to diminish access to the procedure and target those who provide it. The state has become a laboratory for Republican priorities, on issues from gun rights to immigration to Medicaid, since Jan Brewer replaced Governor Janet Napolitano, a Democrat who resigned to become the U.S. Secretary of Homeland Security in 2009.

‘Hard Place’

“This is a really hard place for women of reproductive age,” said Bryan Howard, president and chief executive officer of Planned Parenthood Arizona. “We are seeing a much more aggressive agenda.”

States passed a record 92 abortion-restricting measures last year, more than double the previous record set in 2005, according to the Guttmacher Institute, a pro-abortion rights New York-based compiler of reproductive health data. Republicans winning a majority of governorships and making gains in statehouses in the 2010 elections have enabled that progress, said Denise Burke, vice president of legal affairs at Washington-based Americans United for Life, a group that opposes abortion. Last year it included Arizona on its list of “most improved” states.

Waiting Requirement

Recent Arizona laws, including a 24-hour waiting requirement for women seeking an abortion and a ban on nurse practitioners performing the procedures or dispensing the so-called abortion pill, have made it hard for women in rural areas of the sprawling desert state to terminate pregnancies, Howard said. Planned Parenthood no longer offers abortions outside of Tucson and Phoenix, the state’s two urban centers, because it couldn’t find enough rural physicians and comply with new laws.

Arizona’s 20-week ban is similar to one passed in Nebraska two years ago, said Elizabeth Nash, state issues manager at Guttmacher. Laws in Alabama, Idaho, Indiana, Kansas and Oklahoma followed, and bans in Louisiana and Georgia are set to go into effect Aug. 1 and Jan. 1, respectively.

Arizona’s law calculates gestational age earlier than the rest: from the first day of the woman’s last menstrual period, which opponents say pushes it before conception. Its exception is also narrower: abortions past 20 weeks are only permitted when they are immediately needed to avert death or “serious risk of substantial and irreversible impairment of a major bodily function.” Otherwise the law makes it a misdemeanor punishable by as long as six months in jail for anyone to “knowingly perform, induce or attempt to perform or induce” such a procedure.

‘Death’s Door’

That language means “you have to wait for a woman to be at death’s door to save her life,” said Talcott Camp, deputy director of the American Civil Liberties Union’s Reproductive Freedom Project. “Arizona’s law is just a vicious attack on women’s health and the doctors who protect it.”

Cathi Herrod, president of the anti-abortion Center for Arizona Policy, said the exception is sufficient. While advocates of 20-week bans in other states highlighted the potential for fetal pain -- which medical groups dispute -- proponents of Arizona’s law focused on health risks of abortion, which increase with each week of pregnancy. The law is dubbed “The Mother’s Health and Safety Act” for that reason, she said.

‘Critical Step’

“After almost 40 years of legalized abortion, we now see the devastation that abortion causes women,” Herrod said in a telephone interview. “This is a critical step forward to protect the health and safety of women having an abortion as well as to protect preborn children.”

Legal induced abortion, one of the most frequently performed surgical procedures in the U.S., with an overall death rate of 0.6 per 100,000 occurrences, is 14 times safer than childbirth, according to the American College of Obstetricians and Gynecologists.

Ultrasounds, which can be used to detect serious complications such as heart abnormalities or spina bifida, are usually administered between 18 and 20 weeks, according to the Centers for Disease Control and Prevention. The later they are performed, the more accurate they are, said Mark I. Evans, president of the Fetal Medicine Foundation of America and a professor of obstetrics and gynecology at Mount Sinai School of Medicine in New York.

Unanticipated Consequences

Arizona’s law will yield unanticipated consequences because it makes no exception for such complications, he said. “Lowering the gestational age at which women can terminate pregnancies will lead to more abortions because patients will have to make decisions in borderline situations -- whereas if they have more time, more of those pregnancies continue,” Evans said.

Only 1.5 percent of abortions performed in the U.S. in 2006 were done after 20 weeks, according to Guttmacher. Twenty-three percent of the 1,793 providers in the U.S. offered them in 2008.

In his 30 years practicing medicine and genetics, Evans said the vast majority of terminations after 20 weeks have been for fetal abnormalities. “Women don’t just wake up at 21 weeks and say ‘Oh, I changed my mind.’” Unlike Arizona’s law, Georgia’s has an exception for medically futile pregnancies, Camp said.


State Representative Kimberly Yee, the North Phoenix Republican who sponsored the ban, said she thinks “an abortion-minded woman has the time” to make a decision about her pregnancy before the 20-week ban kicks in. She said she is concerned about “all the babies that have the ability to survive, but their parents are choosing to abort based on a handicap. We heard from doctors that some parents have chosen, if the baby has a cleft lip, to treat that as an anomaly and abort.”

In addition to passing abortion restrictions, Arizona lawmakers have also frozen enrollment in its health insurance program for low-income children and scaled back eligibility for Children’s Rehabilitative Services, which provides specialized health coverage for children with intense health issues, said Dana Wolfe Naimark, president and chief executive officer with the Phoenix-based advocacy group Children’s Action Alliance.

Brewer, who signed the law in April, said she is confident it will withstand court scrutiny. In a July 14 interview, she offered the following advice to mothers of babies born with severe defects:

‘Different Challenges’

“We get dealt all kinds of different challenges in life and when those unfortunate things happen, you love them and you take care of them and you educate them,” she said. “It’s as simple as that.”

Hercegovac, the mother of two, said after her abortion last month that she and her husband won’t try for a third child. Being forced to deliver the child, knowing its condition, would have been “unfair to the baby, to me, to my whole family,” she said.

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