Judge Strikes Unprecedented Blow Against Right to Choose

Seems it was a good idea to get alarmed by the storm signals from an earlier hearing held by federal district judge James Teilborg on a suit to strike down Arizona’s new and extreme “fetal pain” ban on abortions prior to 20 weeks after a pregnant’s woman’s first missed menstrual period. Today Teilborg upheld the law despite its reasonably direct challenge to an array of Supreme Court precedents against previability abortion restrictions. Salon‘s Irin Carmon has the essential rundown:

The Clinton-appointed district court judge in Arizona just did something, well, unprecedented. He upheld Arizona’s ban on abortions after 20 weeks, claiming it didn’t actually “ban” abortions before viability, it just “regulates” them down to the most grueling emergencies.

Worse, Teilborg even regurgitated the suspect science of “fetal pain,” a first in the federal courts, though his decision was based on the contorted “regulation” versus “ban” finding. The Supreme Court has repeatedly held that the state can only ban abortions after viability, regardless of the rationale, but Teilborg found that Arizona’s H.B. 2036 “does not impose a substantial obstacle to previability abortions,” because a woman can still get an abortion after 20 weeks if she’s about to die or suffer major physical impairment.

“It’s such a game of semantics, to the point of Alice in Wonderland,” ACLU staff attorney Alexa Kolbi-Molinas told Salon. “When the Supreme Court said you cannot ban any abortions prior to viability, regardless of whether there are any exceptions to that ban, that’s exactly what they meant.”

The ruling will be immediately appealed 9th Circuit Court of Appeal, allegedly a bastion of liberalism. But even if Teilborg’s effort to significantly change constitutonal law is overruled, he’s drawn up a template for a higher or future Court to pay lip service to the precedents while vitiating the right to choose in a fundamental way.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.