Judge Refuses to Enjoin Arizona’s New Abortion law on basis of unborn pain

By Dave Andrusko

Judge James Teilborg

Within hours of a decision by a federal judge not to temporary enjoin Arizona’s new abortion law, the American Civil Liberties Union vowed to file an emergency appeal to the U.S. Ninth Circuit Court of Appeals.

The measure, signed into law in April by Gov. Jan Brewer, is scheduled to go into effect August 1.

The law generally prohibits abortions after 20 weeks of pregnancy (18 weeks fetal age), based in part on medical evidence that the unborn can feel pain by that point, if not earlier.

U.S. District Judge James A. Teilborg’s 15-page decision comes one day before the U.S. House of Representatives is scheduled to vote on a bill to overturn the current policy in the District of Columbia of allowing legal abortion, for any reason, until the moment of birth.

Judge Teilborg quoted liberally from the 1992 Planned Parenthood v. Casey decision and the 2007 Gonzales v. Carhart decision which upheld the ban on partial-birth abortions.

After first dispatching of the plaintiff’s assertion that H.B. 2036 imposes a substantial obstacle to previability abortions, Judge Teilborg went to the issue of whether “the State has a legitimate interest in prohibiting abortions past 20 weeks gestational age.” Among the interests the state of Arizona asserted was “to prevent abortions when the unborn child would feel the pain involved in an abortion.”

At that point he quoted from the High Court’s Gonzales decision, where the most common abortion technique that is used—the “D&E”—was explained in clinical but nonetheless disturbing terms.  [The underlined text is underlined in Judge Teilborg decision.]

The surgical procedure referred to as “dilation and evacuation” or “D&E” is the usual abortion method in this trimester. Planned Parenthood, 320 F. Supp. 2d, at 960–961. Although individual techniques for performing D&E differ, the general steps are the same.

A doctor must first dilate the cervix at least to the extent needed to insert surgical instruments into the uterus and to maneuver them to evacuate the fetus. Nat. Abortion Federation, supra, at 465; App. in No. 05–1382, at 61. The steps taken to cause dilation differ by physician and gestational age of the fetus. See, e.g., Carhart, 331 F. Supp. 2d, at 852, 856, 859, 862–865, 868, 870, 873–874, 876–877, 880, 883, 886. A doctor often begins the dilation process by inserting osmotic dilators, such as laminaria (sticks of seaweed), into the cervix. The dilators can be used in combination with drugs, such as misoprostol, that increase dilation. The resulting amount of dilation is not uniform, and a doctor does not know in advance how an individual patient will respond. In general the longer dilators remain in the cervix, the more it will dilate. Yet the length of time doctors employ osmotic dilators varies. Some may keep dilators in the cervix for two days, while others use dilators for a day or less. Nat. Abortion Federation, supra, at 464–465; Planned Parenthood, supra, at 961.

After sufficient dilation the surgical operation can commence. The woman is placed under general anesthesia or conscious sedation. The doctor, often guided by ultrasound, inserts grasping forceps through the woman’s cervix and into the uterus to grab the fetus. The doctor grips a fetal part with the forceps and pulls it back through the cervix and vagina, continuing to pull even after meeting resistance from the cervix. The friction causes the fetus to tear apart. For example, a leg might be ripped off the fetus as it is pulled through the cervix and out of the woman. The process of evacuating the fetus piece by piece continues until it has been completely removed. A doctor may make 10 to 15 passes with the forceps to evacuate the fetus in its entirety, though sometimes removal is completed with fewer passes. Once the fetus has been evacuated, the placenta and any remaining fetal material are suctioned or scraped out of the uterus. The doctor examines the different parts to ensure the entire fetal body has been removed. See, e.g., Nat. Abortion Federation, supra, at 465; Planned Parenthood, supra, at 962. …

“Given the nature of D&Es,” Judge Teilborg writes, “and the finding that the unborn child has developed pain sensors all over its body by 20 weeks gestational age, this Court concludes that the State has shown a legitimate interest in limiting abortions past 20 weeks gestational age.”