Metropolitan News-Enterprise


Wednesday, May 22, 2013


Page 3


Ninth Circuit Strikes Down Arizona Ban on Abortions After 20 Weeks


From Staff and Wire Service Reports


The Ninth U.S. Circuit Court of Appeals yesterday struck down Arizona’s ban on abortions after 20 weeks of pregnancy absent a medical emergency.

The panel said the law violated a woman’s constitutionally protected right to terminate a pregnancy before a fetus is able to survive outside the womb. “Viability” of a fetus is generally considered to start at, or just shy of, 24 weeks.

Nine other states have enacted similar bans starting at 20 weeks or even earlier. Several of those bans had previously been placed on hold or struck down by other courts.

Judge Marsha Berzon, writing for the unanimous panel on, said such bans before viability violate a long string of U.S. Supreme Court rulings starting with Roe v. Wade in 1973. The judge wrote that “a woman has a constitutional right to choose to terminate her pregnancy before the fetus is viable.”

Gov. Jan Brewer signed the ban into law in April of last year after it was approved by the Republican-led Legislature. Supporters said the law was meant to protect the mother’s health and prevent fetuses from feeling pain.

U.S. District Judge James Teilborg ruled it was constitutional, partly because of those concerns, but the Ninth Circuit blocked the ban from going into effect until it ruled.

Argument Rejected

Lawyers representing Arizona argued that the law did not constitute a total ban because it allowed for doctors to perform abortions in medical emergencies, and thus constituted a permissible regulation of abortion procedure under the Supreme Court’s jurisprudence.

 Berzon disagreed, writing:

“The challenged Arizona statute’s medical emergency exception does not transform the law from a prohibition on abortion into a regulation of abortion procedure,” Berzon wrote. “Allowing a physician to decide if abortion is medically necessary is not the same as allowing a woman to decide whether to carry her own pregnancy to term.”

Nor, she said, did the state present a persuasive argument for the court to abandon its bright-line rule that abortions cannot be banned before viability.

“The short of the matter is that, because Arizona’s twenty-week law acts as a prohibition of, and not merely a limitation on the manner and means of, pre-viability abortions, under long-established Supreme Court law no state interest is strong enough to support it,” the judge wrote. “Section 7 effectively shifts from viability to twenty weeks gestation the point at which the state’s asserted interests override a woman’s right to choose whether to carry a pregnancy to term. Supreme Court precedent does not countenance such a shift.”

Judge Mary Schroeder concurred in the opinion, while Judge Andrew Kleinfeld, an anti-abortion activist before President Reagan appointed him to the court, concurred separately. Kleinfeld said it was clear from Supreme Court precedent that none of the interests asserted by Arizona are strong enough to justify a law requiring a medical emergency as a prerequisite to a pre-viability abortion.

Supporters of the ban vowed to keep fighting.

“Given the compelling and important interest Arizona has in protecting the health and well-being of expectant mothers from the dangers of abortions after 20 weeks and to protect children in the womb from needless and horrific imposition of pain, we will seek review from the United States Supreme Court,” Maricopa County Attorney Bill Montgomery, who argued in support of the ban before the court, told the Associated Press. “If the Ninth Circuit cannot permit Arizona to act because of Supreme Court precedent, then the Supreme Court must change that precedent.”

Idaho Ban

The only state within the Ninth Circuit to have enacted a similar ban is Idaho. That law was declared unconstitutional last year by a district judge.

Janet Crepps of the New York-based Center for Reproductive Rights, who argued the case for the plaintiffs, said the court ruled correctly.

“These laws are all unconstitutional,” she said. “This is not a close legal question at all. These laws are unconstitutional.”

Among the lawyers who helped brief the case were Janie F. Shulman and Nancy R. Thomas of Morrison & Foerster LLP in Los Angeles for Paul A. Isaacson, one of three physicians who challenged the law, and Lisa Hill Fenning of Arnold & Porter LLP’s Los Angeles office for the American College of Obstetricians and Gynecologists and the American Congress of Obstetricians and Gynecologists, amici supporting the plaintiffs.

The case is Isaacson v. Horne, 12-16670.


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