By Howard Fischer
Capitol Media Services
PHOENIX -- Republican state senators voted Tuesday to approve new restrictions on abortion that, at least for the moment, are unconstitutional.
SB 1164 would make it a crime for doctors to abort a fetus after the 15th week of pregnancy. Violators could end up in state prison for a year and lose their medical licenses.
The 16-13 party line vote, with all Democrats opposed, occurred even after Sen. Raquel Teran, D-Phoenix, pointed out that there are no exceptions even in cases of rape or incest. The net result, she said, is that these women will be forced to continue the pregnancy and give birth.
Sen. Nancy Barto, R-Phoenix, sponsor of the measure, said she sees no problem with that.
"The baby inside of a woman is a separate life and needs to be protected,'' she said. "All life is sacred.''
Sen. Martin Quezada, D-Glendale, cited a series of court rulings, going all the way back to the 1973 decision in Roe v. Wade, which say that states cannot preclude abortions before a fetus is considered viable. That generally occurs in the area of about 22 to 24 weeks.
Barto, however, said she is counting on the high court using the challenge to a Mississippi law to overturn those precedents. That would leave the question of what abortions are legal up to individual states.
And if nothing else, she said, the justices could simply uphold the Mississippi law which, like her legislation, sets the limit at 15 weeks.
A ruling in that case is expected in June. This measure, Barto said, simply makes Arizona ready to enforce that law if and when that decision is made.
But Quezada said that Barto, in counting on that ruling -- and moving ahead now -- is simply courting a lawsuit against the state.
There is some precedent for what he is saying. With Roe v. Wade still the law of the land, federal courts have struck down prior bids by Arizona lawmakers to curb abortion right, including a 20-week ban approved a decade ago.
Tuesday's Senate debate centered on more than the legal questions. Barto said that the measure would simply bring Arizona into line with what she says is the view of most Americans that abortions at that point should be forbidden.
And she said the science backs her contention that a fetus at 15 weeks is entitled to legal protections.
"Viability is an ongoing question,'' said Barto, who was the only senator to speak in favor of the measure.
"We know from looking inside the womb, technology has given us a great gift to see what we all know instinctively, that is life begins at conception,'' she said. "And as it grows we can see more of the humanity of the unborn child.''
Barto also said that she believes that the Supreme Court will conclude that it is no longer appropriate to use viability as a dividing line between legal and illegal abortion.
At least part of the debate came down to the question of exactly how the law would be enforced.
"Would law enforcement officers be placed in every OB/GYN's office to monitor doctors?'' Teran asked.
Barto, however, said it would be no different than now where most post-viability abortions are a state crime.
"It will be reported and there will be criminal investigations and follow up,'' she said.
"There will be arrests made,'' Barto continued. "But it certainly won't be bursting in on an abortion clinic.''
And she pointed out that nothing in the measure creates any criminal liability a woman who terminates a pregnancy.
"Women would not be prosecuted,'' Barto said.
"Doctors would be responsible,'' she continued. "They would know the law and they would have to abide by it.''
Teran, however, said that didn't make the measure -- and the possibility of doctors being arrested -- any more acceptable.
"There really is no medical way to tell the difference between an abortion and a miscarriage,'' she said, meaning the statute would end up dragging these women into criminal investigations even if they themselves could not be prosecuted.
Sen. Sally Ann Gonzales, D-Tucson, questioned the whole idea of Barto and supporters of the legislation trying to create a statute -- and impose criminal penalties -- based onl their own ideas.
"It's really placing our own individual values and beliefs onto all the women of this state,'' she said. "We ought not be doing that.''
That also was the view of Sen. Rosanna Gabaldon, D-Green Valley.
"I want to live in a world where we respect other people's decisions,'' she said.
"I want to live in a state that can be proud of themselves by giving the opportunity for not only women but families to make a decision on what their families look like and who is going to be in their family,'' Gabaldon said. "I want to be able to give families the decision whether or not to give birth, to adopt, or have an abortion, or not to have children at all.''
There's also the question of whether an Arizona law banning abortion at 15 weeks effectively would create two classes of pregnant women.
That's because even if Roe v. Wade is overturned, some states like California and Nevada already have protections for abortion rights. And nothing in Barto's legislation bars women from traveling to those other states for the procedure.
"This bill will not stop the ones with money from continuing to access that care,'' said Quezada.
"It will only add unnecessary financial obstacles to obtaining an abortion and therefore force those who do not have their funds to continue a government-mandated pregnancy against their will.''
Sen Christine Marsh, D-Phoenix, had her own related objections.
"Until we find a way to completely stop rape and incest, we cannot put barriers in place for those survivors to have the freedom to dictate their own futures,'' she said.
Barto brushed aside complaints by some foes that while the state was restricting abortions it was not putting more money into supporting the women who will be forced to carry their pregnancies to term.
"I don't see Planned Parenthood reaching out,'' she said. "With their billions in profits, they don't lift a finger.''
The measure now goes to the House where there are likely the votes for approval. And Gov. Doug Ducey, who has signed every abortion restriction that has reached his desk, already has made it clear he wants new limits, even to the point of signing on to a legal brief urging the Supreme Court to overturn Roe v. Wade.
There is separate legislation in both the House and Senate to impose a Texas-style ban on abortions after fetal cardiac activity, usually occurring around six weeks. But neither measure has been scheduled for a hearing.
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