Phoenix, Arizona – In their second debate, President Barack Obama and Republican challenger Mitt Romney each made a bid for women’s votes – the former with the Lilly Ledbetter Fair Pay Act, addressing pay discrimination, the latter, with an anecdote of having “binders full of women” to consider for jobs.
While some polls show that women will vote to address their concerns about the economy, more recent surveys, such as the latest USA Today/Gallop poll, indicate that access to abortion services is the top concern among women in the dozen swing states.
Thirty-nine per cent of women polled said abortion was the most important issue this election.
Arizona is considered one of the frontlines in the fight for increased legal restrictions on abortions, notably, changing the number of weeks after conception when a foetus can be considered “viable” – that is, can survive outside a woman’s body.
Abortion bill HB 2036 reduces the cut-off for getting an abortion to 20 weeks of pregnancy from 24, a provision that is currently facing a legal challenge by pro-choice groups.
With Roe v. Wade, the Supreme Court decision that made abortion legal across the United States in 1973, still standing – Romney has said he wants it reversed – the fight for conservatives is now to diminish the constitutional protections created by the landmark decision.
“I don’t deal with hypotheticals. And I’m not about to discuss pro-life strategies with the media.“
– Cathi Herrod, pro-life advocate
The Supreme Court determined that abortions – for any reason – cannot be banned prior to viability, something that is not defined by all states.
While other states such as Idaho , Nebraska and Oklahoma have also passed tough anti-abortion laws, Arizona’s law is considered among the most rigorous. It also defines the gestational period as starting on the first day of a woman’s last menstrual cycle, which could render a woman retroactively pregnant by as much as two weeks.
It also lays out a long list of “established care” and procedures – including how many miles a healthcare facility must be from the clinic providing the abortion – which, if violated, will result in a Class 1 Misdeameanor.
Another bill, HB 2800, which prohibited Medicaid funding for providers of elective abortion, was signed into law in May.
It was challenged by Planned Parenthood and on October 19. A US district judge granted the non-profit provider of reproductive healthcare a preliminary injunction until the lawsuit over its legality has been resolved.
Arizona’s ‘pro-life’ position
HB 2036 sponsors and supporters say their aim is to protect women and unborn children from harm. State representative Kimberly Yee, who sponsored HB 2036 and co-sponsored HB 2800, said on the floor when the bill passed, “This bill is about maternal health and safety,” and stated her concerns about the risks of an abortion carried out after 20 weeks of pregnancy.
Yee declined to be interviewed, forwarding Al Jazeera’s request to the Centre for Arizona Policy (CAP), a powerful conservative lobbying group based in Phoenix.
CAP drafted the law and has been at the forefront of the fight against abortion in Arizona.
“Abortion poses risks to a woman’s health,” said CAP president Cathi Herrod.
The bill is meant to protect the health of the mother and foetus, and was “drafted in order to fulfill the constitutional requirement of pro-life law”, she said.
When asked if the law was written in response to a public outcry against abortions, Herrod pointed out that Arizona voters chose a pro-life governor and Senate majority. “Arizona voters are clearly taking pro-life position.”
A strategy for a potential defeat of the viability provision is not being considered, Herrod said.
“I don’t deal with hypotheticals,” said Herrod. “And I’m not about to discuss pro-life strategies with the media.”
‘Putting women at risk’
The only two physicians on the Arizona State Legislature also went on the record on the House floor to argue against the bill. One of them, State Representative Eric Meyer, told Al Jazeera that HB 2036 “poses a number of problems with the standard of care … so many problems from the medical standpoint”.
To start with, Meyer said, the Arizona laws targeting abortions were drafted, noted, and signed by people who know nothing about medicine.
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“They’re legislating a standard of care, where the people writing the law have no idea what it’s like to practice medicine. In this case they’ve also made it so that there are penalties for the physicians – losing their license, being fined, going to jail,” said Meyer.
He also said by defining the start of the gestational age of the foetus – in part as the first day of a menstrual period – the law effectively places the cut-off for getting an abortion as early as 18 weeks into the pregnancy. In many cases this is too soon to tell if there are any complications with the pregnancy and, crucially, how those potential complications might play out for both the foetus and the woman.
“They’re putting women at risk,” said Meyer. “The facts don’t matter …politics outweigh public health.”
Meyer blamed the push on conservatives and Tea Party members. “They’re all putting up obstacles – making it more difficult, whether its restricting medicine that can be used … There are always multiple bills in each session that erode the women’s access to reproductive care.”
While HB 2036 has multiple provisions, the viability issue is what pro-choice advocates have seized upon. The day before Americans go to the polls November 6 to choose their next president, lawyers representing the American Civil Liberties Union and the Centre for Reproductive Rights will argue before a three-judge panel in San Francisco that the provision is unconstitutional.
Janet Crepps, one of the lead attorneys on the case, said the viability provision – the only portion of the bill being challenged – is an “affront” to women’s constitutional rights, displaying “unbridled hostility” towards women’s right to choose.
“It takes away their right, their dignity, their ability to make decisions,” said Crepps.
“We feel that this can’t go unaddressed.”
Peter Gentela, general council to the House majority, and former CAP attorney, said the law is not about abortion as a whole, but about the risks of getting an abortion after 20 weeks of pregnancy.
He disagrees with opponents of the law who say it is too rigid, since it still allows for exceptions when the mother’s life is in danger.
Gentela also said the possibility that a foetus could “develop the ability to experience tactile pain” at 17 weeks was another factor in moving the viability goalposts.
“There’s no question that legislators in other states are watching closely in Arizona, and advocates on either side will use what happens in their arguments.”
– Janet Crepps, lawyer
As far as the law goes, “there’s no authority there other than medical evidence”. He said the Supreme Court would side with Arizona, if the case were to go that far.
“The Supreme Court, the last time it took over an abortion issues, deferred to Congress when there were medical issues,” said Gentalla, referring to Gonzales v. Carhart, a 2007 case when the Supreme Court upheld a ban on partial-birth abortions.
Still, with a tight presidential race – with the winner having the power to shape the Supreme Court – the standoff between pro and anti-choice camps could have significant future effects, and the legal outcome over the viability provision is likely to be precedent setting.
“There’s no question that legislators in other states are watching closely in Arizona, and advocates on either side will use what happens in their arguments,” said Crepps. “If we lost, it would add fuel to the fire.”