Inside the Legal Fight Over Arizona’s Abortion Ban

Arizona state legislators were smug last April when they passed a 20-week abortion ban that remains the earliest abortion restriction in the nation. But enacting this law won’t be a cakewalk for anti-choice Gov. Jan Brewer and co.

The Center for Reproductive Rights and the ACLU of Arizona have joined forces in fighting the Arizona ban, which prohibits abortions from 20 weeks after a woman’s last menstrual period in all cases except immediate medical emergencies. The two organizations filed a lawsuit last week on behalf of three doctors, arguing that the law is a “cruel and unconstitutional” attack on Arizona women. Lawyers from the Center and ACLU are asking the federal district court to block the law, which is slated to go into effect Aug. 2.

Arizona’s draconian 20-week abortion ban angered not only pro-choice advocates, but professionals in the medical community for its blatant disregard of pre-natal health concerns, such as testing for fetal abnormalities. The law’s narrow exceptions, according to the ACLU of Arizona, makes it an assault on the right for women to have agency over their bodies and choices. For instance, the ban applies to fetuses that are not expected to survive outside the womb, meaning women would not be able to terminate a medically futile pregnancy.

The ACLU of Arizona also said that the ban is incredibly dangerous for women with high-risk pregnancies:

The ban would force a physician caring for a woman with a high-risk pregnancy to wait until her condition imposes an immediate threat of death or major medical damage before offering her the care she needs.

Three 20-week abortion bans have been passed in 2012, but none have been as extreme as Arizona’s. The law stoked controversy over its use of the term “last menstrual period (LMP)” with many media outlets reporting that Arizona was now redefining “life” and declaring women pregnant two weeks before conception. Using LMP, however, is the correct way to date a pregnancy and is used by all medical professionals. What the Arizona ban revealed was not that the state legislators were using incorrect medical information, but that previously passed 20-week bans in other states used false medical terms—and are not true 20-week bans.

In an April interview with Dr. Jen Gunter, a practicing OB/GYN who frequently writes about reproductive issues, Ms. reported that previous 20-week abortion bans used the term “postfertilization” or “probable fertilization age of the unborn child.” But according to Dr. Gunter, “postfertilization” is not recognized in the medical community; instead, it’s used by anti-choice legislators to presumably reinforce the idea of life from conception. Says Dr. Gunter,

There is no such thing as a fertilization date. It’s gibberish. … Twenty weeks from conception means 22 weeks pregnant [in standard medical terms].

At 20 weeks from LMP, Arizona lays claim to the harshest abortion ban in the nation—a full month earlier than the 24-week, post-viability precedent set in Roe v. Wade. Currently, there are eight states barring abortions after 20 weeks postfertilization—essentially, 22 weeks of pregnancy—with Louisiana being the last state to pass such a ban. Though passing 20-week postfertilization bans have become a trend among anti-choice legislators over the last two years, the Arizona ban will be the first of these early-limit bans to be brought to court.

Photo of Arizona Gov. Jan Brewer from Wikimedia Commons. 


Lauren Barbato is a writer who enjoys focusing on the intersection of the arts and social justice. As a journalist, she has contributed to Ms., the Women's Media Center, IndieWire, MovieMaker Magazine and many others. She holds a B.F.A. degree in screenwriting from the University of Southern California. Follow her on Twitter @lauren_barbato.