Court strikes down Arizona's 20-week abortion ban
9th Circuit Court of Appeals strikes down Arizona 20-week abortion ban
Posted: Tuesday, May 21, 2013 3:00 pm | Updated: 3:08 pm, Tue May 21, 2013.
By Howard Fischer, Capitol Media Services
Calling a woman's rights "unalterably clear,'' a federal appeals court on Tuesday struck down Arizona's nearly year-old ban on abortions at 20 weeks and beyond.
In a unanimous decision, the 9th Circuit Court of Appeals acknowledged that the law on what states can and cannot restrict has varied since the landmark 1973 case of Roe v. Wade. That ruling barred states from banning a woman's right to an abortion, at least early in her pregnancy.
But Judge Marsha Berzon, writing for the court, said one thing has remained constant.
"A woman has a constitutional right to choose to terminate her pregnancy before the fetus is viable,'' she said. "A prohibition on the exercise of that right is per se unconstitutional.''
While a federal judge last year declared the law valid, it has never been enforced. That's because the appellate court put it on "hold'' while it considered the appeal.
Tuesday's ruling is a setback not only for the majority of legislators who voted for the ban but also for Gov. Jan Brewer who signed the measure. She believes most abortions should be illegal.
But it is not likely the last word. Maricopa County Attorney Bill Montgomery, who personally argued the case to the appellate court, has said he sees the law as a chance to have the whole issue of the viability standard revisited by the U.S. Supreme Court.
And Cathi Herrod, president of the anti-abortion Center for Arizona Policy, said she is "not surprised or discouraged.''
"The 9th Circuit Court of Appeals is well known for opinions that get overturned by the United States Supreme Court,'' she said.
But Herrod said the high court does not have to overturn Roe v. Wade and subsequent rulings which have clearly said states cannot ban pre-viability abortions. Herrod said she believes the statute can be defended without asking the court to void its historic ruling.
"Obviously, I wouldn't be upset if they did,'' Herrod added.
The legislation makes it a crime for a doctor to perform an abortion beyond the 19th week unless it's necessary to prevent a woman's death or "substantial and irreversible impairment of a major bodily function."
Montgomery conceded during legal arguments last year in San Francisco that Supreme Court rulings generally prohibit states from interfering with a woman's right to terminate her pregnancy any time before a fetus is considered viable outside the womb. That is generally considered somewhere around the 23 or 24-week mark.
But he pointed out that the high court has allowed reasonable restrictions for legitimate reasons. And Montgomery said lawmakers had such justification for what he termed just a restriction.
One was the conclusion by the Legislature that a fetus at 20 weeks can feel pain. The other, also based on testimony, is there is an increased risk to the mother's health from an abortion at and after 20 weeks.
But Berzon said no amount of argument from Montgomery could overcome the fact that the Arizona law was not a restriction like a 24-hour waiting period but an outright ban. And that, she said, Arizona cannot do.
"Since Roe, the Supreme Court and lower federal courts have repeated over and over again that viability remains the fulcrum of the balance between a pregnant woman's right to control her body and the state's interest in preventing her from undergoing an abortion,'' Berzon wrote. And because it is a ban, and not merely a limitation, "no state interest is strong enough to support it.''
In a concurring opinion, Judge Andrew Kleinfeld said there may be legal ways for the state to deal with its stated concerns.
"Were the statute limited to protecting fetuses from unnecessary infliction of excruciating pain before their death, Arizona might regulate abortions at or after 20 weeks by requiring anesthetization of the fetuses about to be killed, much as it requires anesthetization of prisoners prior to killing them when the death penalty is carried out,'' Kleinfeld wrote.
He also brushed aside the measure's stated interest in protecting a woman's health as a reason to keep her from getting an abortion at or after 20 weeks.
"People are free to do many things to their health, such as surgery to improve their quality of life but unnecessary to preserve life,'' Kleinfeld said. "There appears to be no authority for making an exception to this general liberty regarding one's own health for abortion.''
Kleinfeld acknowledged there are problems with using viability as the standard to determine when a state can and cannot ban abortion, pointing out that in 1973 that was considered 28 weeks. And he said medical science for premature babies may advance to where they are viable three or four weeks earlier than now.
But Kleinfeld said no one from the state is arguing that has happened, forcing his court to decide the legal issue based on the current state of science.
"The 9th Circuit got it exactly right,'' said Janet Creps, the attorney for the Center for Reproductive Rights which challenged the law.
"When you tell somebody that they are absolutely forbidden to do something, that's a ban,'' Creps said. "Most people can pretty commonly understand when something is a ban and something is a regulation.''
Kleinfeld also said the fact that an Arizona woman wanting an abortion at or after 20 weeks can go to another state does not make the law any more unacceptable.
"I am unaware of any case in which one state might deprive someone of a constitutional right because the individual could exercise it in another state,'' he said.
Court strikes down Arizona's 20-week abortion ban
By Paul Elias Associated Press Tue May 21, 2013 1:05 PM
SAN FRANCISCO — A federal court Tuesday struck down Arizona’s ban on abortions after 20 weeks of pregnancy absent a medical emergency.
The 9th U.S. Circuit Court of Appeals 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 24 weeks. Normal pregnancies run about 40 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 three-judge panel on the San Francisco-based court, said such bans before viability violate a long string of U.S. Supreme Court rulings starting with the seminal Roe v. Wade decision 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 2012 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 9th Circuit blocked the ban from going into effect until it ruled.
Lawyers representing Arizona argued that the ban wasn’t technically a law but rather a medical regulation because it allowed for doctors to perform abortions in medical emergencies. Berzon rejected that reasoning and deemed the legislation a law banning abortions before a fetus is viable.
“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.”
Berzon was joined by judges Mary Schroeder and Andrew Kleinfeld.
Cathi Herrod, the head of a Christian social conservative group that championed the 2012 legislation, said the ruling overlooks the state’s interest in protecting maternal health,” but that the outcome wasn’t surprising because of the court’s reputation as siding with politically liberal causes.
“We look forward to an appeal to the United States Supreme Court,” said Herrod, president of the Phoenix-based Center for Arizona Policy. The group filed a legal brief in support of the Arizona law.
The 9th Circuit’s ruling is binding only in the nine Western states under the court’s jurisdiction, and Idaho is the only other state in the region with a similar ban. A federal judge earlier declared Idaho’s ban unconstitutional.
Janet Creppe, a lawyer who argued against the ban in court for the Center for Reproductive Rights, said the ruling Tuesday affirmed a woman’s right to an abortion before viability.
“These laws are all unconstitutional,” she said. “This is not a close legal question at all. These laws are unconstitutional.”