During the 2011 legislative session, Iowa House Republicans approved a ban on most abortions after the 20th week of pregnancy. Several attempts by Republicans to bring that bill to the floor in the Iowa Senate failed. At the time, Senate Majority Leader Mike Gronstal warned that the House legislation “invites a very serious court challenge” and violates a woman’s “right to make her own personal, private decision about abortion without the interference of politicians.” After the original bill died in the upper chamber, the Iowa House passed an even more restrictive ban on abortions after 20 weeks gestation (which is equivalent to about 18 weeks post-fertilization). Governor Terry Branstad supports efforts to ban abortion after 20 weeks in Iowa, but as long as the Iowa Senate remains under Democratic control, such legislation will not advance here.
Many other states have passed versions of a ban on late-term abortions. Yesterday a Ninth Circuit U.S. Appeals Court panel struck down the law Arizona adopted in 2012. The three judges (including one conservative appointed by a Republican president) agreed that the law violates a woman’s constitutional rights.
After the jump I’ve posted excerpts from the majority and concurring opinions. Assuming the state of Arizona appeals, this case could lead to the most important U.S. Supreme Court ruling on abortion in a decade.
From Judge Marsha Berzon’s majority opinion for the Ninth Circuit Court of Appeals ruling in Isaacson v. Horne (pdf):
Our question is whether the Constitution permits the Arizona legislature to prohibit abortion beginning at twenty weeks gestation, before the fetus is viable. We hold that it does not.
Arizona House Bill 2036 (“H.B. 2036” or “the Act”), enacted in April 2012, forbids, except in a medical emergency, abortion of a fetus determined to be of a gestational age of at least twenty weeks. Arizona law separately prohibits abortions after fetal viability unless necessary to preserve the pregnant woman’s life or health. See Ariz. Rev. Stat. § 36-2301.01(A)(1). The challenged provision in Section 7 of H.B. 2036 (“Section 7” or “the twenty-week law”)1 extends the abortion ban earlier in pregnancy, to the period between twenty weeks gestation and fetal viability. Because Section 7 deprives the women to whom it applies of the ultimate decision to terminate their pregnancies prior to fetal viability, it is unconstitutional under a long line of invariant Supreme Court precedents.
Since Roe v. Wade, 410 U.S. 113 (1973), the Supreme Court case law concerning the constitutional protection accorded women with respect to the decision whether to undergo an abortion has been unalterably clear regarding one basic point, although it has varied in other respects: a woman has a constitutional right to choose to terminate her pregnancy before the fetus is viable. A prohibition on the exercise of that right is per se unconstitutional. While the state may regulate the mode and manner of abortion prior to fetal viability, it may not proscribe a woman from electing abortion, nor may it impose an undue burden on her choice through regulation.
The challenged Arizona statute’s medical emergency exception does not transform the law from a prohibition on abortion into a regulation of abortion procedure. 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. Moreover, regulations involve limitations as to the mode and manner of abortion, not preclusion of the choice to terminate a pregnancy altogether. Arizona’s twenty-week law is a preclusion prior to fetal viability and is thus invalid under binding Supreme Court precedent.
The district court erred in denying declaratory and injunctive relief and entering judgment in favor of the State. We therefore reverse.
1 Section 7 of H.B. 2036 encompasses provisions to be codified at Arizona Revised Statutes § 36-2158 and § 36-2159. As this lawsuit challenges only the provision to be codified at § 36-2159, all references to Section 7 in this opinion denote only the challenged portion thereof.
From Judge Andrew Kleinfeld’s concurring opinion:
The current state of the law compels me to concur.
Arizona defends the statute on two grounds: that the risk to pregnant women is considerably greater after 20 weeks gestation, and that fetuses feel pain at least by 20 weeks. The State has presented substantial medical evidence to support its legislative findings on both points. The very undeveloped record affords no basis for rejecting these propositions. But they do not suffice to justify the statute in the current state of constitutional law. 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.1 Gonzales v. Carhart similarly suggested that if a particularly inhumane abortion procedure, removing the child from the uterus intact and then killing it after it had left the uterus and entered the vaginal canal, were “truly necessary in some circumstances, it appears likely an injection that kills the fetus is an alternative.”2
The plaintiffs argue that some extremely serious birth defects cannot be detected until after 20 weeks. If that were all that were problematic about the statute, we could apply the doctrine of constitutional avoidance, and read the statutory phrasing to permit post-20 week abortions for serious fetal anomalies. “The elementary rule is that every reasonable construction must be resorted to, in order to save a statute fromunconstitutionality.”3 The statutory phrase “serious risk of substantial and irreversible impairment of a major bodily function”4 could, albeit with some strain, be read to mean impairment of the fetus’s bodily functions. Even if not, birth of a severely deformed child is highly likely to impair all of a mother’s bodily and mental functions for the rest of her life, because of the extraordinary burdens the child’s disabilities and illnesses will likely cause a loving mother to suffer. A hellish life of pain may be likely for both mother and child, in the case of the birth defects described in plaintiffs’ affidavits. A prohibition on abortion “would be unconstitutional . . . if it subjected women to significant health risks.”5
But plaintiffs do not limit their challenge to such cases, they just use them as emotionally appealing anecdotes for why abortions may be desirable after 20 weeks. Because their challenge is facial, not an as-applied challenge involving specific birth defects, our decision cannot be based only on cases involving severe birth defects undetectable until the 20 to 23 week period. […]
What controls this case is that the parties do not dispute that the 20-week line Arizona has drawn is three or four weeks prior to viability. Defendants do not argue that the 20 to 23 or 24 week fetuses protected by the statute are viable, and offer no evidence to that effect. We are bound, in this particular case, by the absence of any factual dispute as to whether the fetuses to be killed between gestational ages 20 and 23 or 24 weeks are viable. The decision in this case cannot, of course, establish the factual medical question of whether they are viable, because non-viability is the underlying factual assumption of both parties in today’s case. For this case, Arizona concedes nonviability.
Viability is the “critical fact” that controls constitutionality.7 That is an odd rule, because viability changes as medicine changes. As Planned Parenthood v. Casey noted, between Roe v. Wade8 in 1973 and the time Casey was decided in 1992, viability dropped from 28 weeks to 23 or 24 weeks, because medical science became more effective at preserving the lives of premature babies.9 The briefs make good arguments for why viability should not have the constitutional significance it does, but under controlling Supreme Court decisions, it does indeed have that significance. And even though medical science for premature babies may advance to where they are viable three or four weeks earlier, Arizona does not claim that science has done so.
Thus this case has to be decided on the assumption that the statute applies to non-viable fetuses, and that the statute before us prohibits abortions of non-viable fetuses past 20 weeks of gestation except for medical emergencies. We evaluate whether that prohibition is, under Casey, an “undue burden.” The woman who does not have a “medical emergency” cannot obtain an abortion after 20 weeks from an Arizona physician. The question for us is whether the current state of constitutional law prohibits the states from imposing that restriction. It does.
Though Casey was a plurality opinion leaving some room for interpretation,10 a majority of the Supreme Court in Gonzales spoke clearly, albeit partially in dicta,11 as to the current state of the law. Here are several propositions of law by which, under Casey and Gonzales, we are bound:
1. “[T]he government has a legitimate and substantial interest in preserving and promoting fetal life”;12
2. “Before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle”;13
3. There is a constitutional “right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State”;14
4. “Casey rejected both Roe’s rigid trimester framework and the interpretation of Roe that considered all previability regulations of abortion unwarranted”;15
5. “Before viability, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy”;16
6. An “undue burden,” prohibited by Casey even though less than an absolute prohibition, exists if a “regulation’s purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability”;17
7. Gonzales accepts as appropriate government objectives prohibiting inhumane procedures that “coarsen society,” recognizing that a government may consider “effects on the medical community,” and “may use its voice and its regulatory authority to show its profound respect for the life within the woman”;18
8. The “undue burden” test does not prohibit laws that have a valid purpose but an “incidental effect of making [abortion] more difficult or expensive to procure,”19 and the woman seeking to abort even a previability fetus is not constitutionally entitled to do so completely free of interference from the state, but any state interference cannot be “undue.”20
Our circuit law is to similar effect, of course.21
Arizona has unquestionably put a “substantial obstacle” in the path of a woman seeking to abort a previability fetus. Unless she has a “medical emergency,” no one can perform it on her. True, she might be able to go to another state for it, but I am unaware of any case in which one state may deprive someone of a constitutional right because the individual could exercise it in another state. And aborting previability fetuses is, under the current state of the law, a constitutional right. True, the state has a legitimate interest in protecting the fetus from pain. Although plaintiffs’ amici claim that a previability fetus feels no pain, the state’s experts’ affidavits claim that it does, and legislatures have “wide discretion to pass legislation in areas where there is medical and scientific uncertainty.”22 But protection of the fetus from pain, even the pain of having a doctor stick scissors in the back of its head and then having the doctor “open[] up the scissors [and stick in] a high-powered suction tube into the opening, and suck[] the baby’s brains out” was not enough in Gonzales to justify a complete prohibition.23
As for Arizona’s claimed interest in the mother’s health, people are free to do many things risky to their health, such as surgery to improve their quality of life but unnecessary to preserve life. There appears to be no authority for making an exception to this general liberty regarding one’s own health for abortion.
Pamela MacLean noted at Trial Insider,
Kleinfeld is a Republican appointee from the conservative wing of the court while Berzon was a Democrat appointee at the liberal end of the court.
Berzon and Kleinfeld were joined by Judge Mary Schroeder, an appointee of President Jimmy Carter.