Officials argue against new abortion law

PHOENIX - New abortion restrictions approved by the Legislature, including a 24-hour waiting period, are not an "undue burden'' on women and should be allowed to take effect on Wednesday as scheduled, attorneys for the state are arguing to federal and state judges.

"Simply because the law makes the right to terminate (a pregnancy) more difficult or expensive to exercise does not mean the law is invalid,'' the Attorney General's Office said in new filings in U.S. District Court.

But Assistant Attorney General Paula Bickett isn't trying to prove right now that the law is constitutional. That will occur at trials which have yet to be scheduled.

Her more immediate goal is to get judges to reject efforts by abortion rights groups and providers to bar enforcement of the new requirements while the cases wind their way through the court system, a process that could take years.

The law is set to take effect Wednesday. And judges in both state and federal courts will hear arguments Tuesday about whether to let that happen.

The filings come as Attorney General Terry Goddard took himself out of the loop in making decisions about how his office, charged with defending the law in court, handles the legal fight.

"In an abundance of caution, we have decided to screen him from decisions in this case,'' said agency spokeswoman Anne Hilby. She said while Goddard does not believe he has a legal conflict of interest, he "has a pro-choice position'' which might raise questions about whether his office is doing all its can to have judges uphold the law.

The move puts Tim Nelson, his chief deputy, in charge, at least over this issue. Hilby said the agency does not believe Nelson has any legal conflicts.

Under both state and federal laws, those seeking injunctions must show more than they are likely to prevail when the case goes to trial.

They also must show the likelihood of irreparable harm if a law that may be invalid is allowed to take effect, even temporarily. And they need to prove that the hardships that would be imposed on those wanting to block implementation of the law are greater than the hardships the state would face if the law were placed on hold.

In legal papers filed nearly two weeks ago, the challengers said the provisions of the law will make it difficult, if not impossible, for women to exercise the constitutional right to terminate a pregnancy that the U.S. Supreme Court recognized in 1973. That's because the law requires not only a waiting period but that women wanting an abortion first be provided with certain information, in person, meaning two trips to a clinic.

Attorney Suzanne Novak from the Center for Reproductive Rights, which is representing the Tucson clinic, specifically cited a survey of 92 women who had abortions. Several said requiring two trips would be difficult for reasons ranging from getting leave from the military to keeping the pregnancy a secret.

Bickett, however, pointed out the U.S. Supreme Court in 1992 said a 24-hour waiting period enacted by Pennsylvania lawmakers was not an "undue burden'' on women. She said the court concluded that one test of whether restrictions were illegal is whether they would affect a "substantial fraction'' of women.

Here, Bickett said even if the claims of all 14 women were true - something she is not conceding - that is not a large enough fraction of the 92 women surveyed to block enforcement of the law.

Bickett also brushed aside claims that delaying an abortion would mean more medical complications.

"While the rate of increase in mortality over the period from eight weeks (since) last menstrual period to 22 weeks (since) last menstrual period may be 38 percent per week, it is a fact that the rate of increase is not constant and, even at 18 weeks, one's chance of dying from an abortion is extremely small,'' she wrote.

She said the state has a legitimate interest in ensuring women considering an abortion be given certain information and "have the opportunity for reflection that the legislation requires.''

Bickett also is urging judges to allow other challenged sections of the law take effect.

One would allow medical professionals, including pharmacists, who have "moral or religious objections to abortion'' to refuse to dispense emergency contraceptives as well as refuse to tell a woman where she can get them. That is because what has become known as the "morning after'' pill may work by preventing a fertilized egg from implanting in the womb, making it an abortion in the eyes of some.

"The state has a compelling, or certainly a legitimate, interest in protecting the health professionals' right to their personal religious or moral beliefs,'' Bickett wrote.