Constitutional Law

Citing Evidence of Fetal Pain at 20 Weeks, US Judge Allows Ariz. Late-Term Abortion Ban

A federal judge in Arizona has refused to grant an injunction to stop an Arizona late-term abortion ban from taking effect, saying lawmakers had a legitimate interest in limiting abortions past 20 weeks’ gestational age partly because of evidence that the fetus can feel pain.

U.S. District Judge James Teilborg cleared the way for the law to take effect in an opinion issued Monday, report the Associated Press, Reuters, the Washington Post’s Wonkblog and Courthouse News Service. The law is scheduled to take effect on Thursday.

Reuters calls the ruling “a stinging defeat for abortion rights advocates who cited the Arizona law as the most extreme example of late-term abortion prohibitions enacted in more than half a dozen states.”

The U.S. Supreme Court has allowed states to ban abortions after the fetus is viable, thought to be at 23 to 24 weeks, the Wonkblog story explains. Teilborg said the Arizona law regulates rather than bans abortions between 20 weeks and viability because of exceptions to prevent a pregnant woman’s death or to avoid a serious risk to a major bodily function.

Teilborg said the legislature had a legitimate interest in limiting abortions for two reasons. The first is a legislative finding that the risk of complications is highest after 20 weeks. The second, he said, is because of “substantial and well-documented evidence that an unborn child has the capacity to feel pain during an abortion by at least 20 weeks gestational age.”

“Defendants presented uncontradicted and credible evidence to the court that supports this determination,” Teilborg wrote. “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. … That the unborn child can feel pain is further supported by the fact that when provoked by painful stimuli, such as a needle, the child reacts, as measured by increases in the child’s stress hormones, heart rate and blood pressure.”

According to Wonkblog, the pain research is disputed.

Unlike eight other states that ban abortions at 20 weeks, the Arizona law actually pushes back the abortion ban to 18 weeks of pregnancy, the Arizona Republic reports. That’s because the Arizona law defines gestational age as beginning on the first day of the woman’s last period.

The American Civil Liberties Union plans to appeal.

Hat tip to How Appealing.

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